High Court · 2025 on 11 Apr 2025

Judgment

1. This Criminal Appeal has been filed by the appellant under Section 21(4) of the National Investigation Agency Act, 2008, hereinafter referred to as the Act of 2008, against the order dated 24.06.2024 passed in Bail Application No.4133 of 2024, by the Special Judge, rejecting the bail application of the applicant.

2. Heard Shri Salil Kumar Srivastava, learned counsel for the appellant and Shri Shiv Nath Tilhari, learned A.G.A. for the State-respondent.

It has been submitted by the counsel for the appellant that the appellant has been falsely implicated in Case Crime No.12 of 2023, under Sections 120-B, 419, 420, 467, 468, 471 IPC, at P. S. ATS Gomti Nagar, Lucknow.

4. It has been argued that no substantive material in the form of evidence has been collected to connect the appellant with the crime in question. Initially, FIR was lodged also under Section 370 IPC and Section 14 of the Foreigners Act 1946, however, after collecting evidence, Investigating Officer has recorded a finding that the appellant, Sheikh Najeeb-ul-Haque was not found involved in offence under Section 370 IPC and Section 14 (2) of the Foreigners Act. Hence, the only offences in which the appellant has been chargesheeted relate to Sections 419, 420, 467, 468, 471 and 120-B IPC, which are all triable by Magistrate and as such the Special Judge NIA/ATS/ A.D.J., III has wrongly taken cognizance of the offence against the appellant. It has also been argued that no evidence has been collected by the Investigating Officer under Section 467 IPC and therefore, the claim of the appellant for bail does not fall within the ambit of Proviso to Section 437 (1) Cr.PC.

5. It has been argued that no direct evidence has been collected against the appellant. The name of the present appellant came to light on the basis of confessional statement of the co-accused, Adil-ur-Rahman and such confessional statement cannot be relied upon under Section 10 and 30 of the Indian Evidence Act, 1872. His further submission is that any evidence, on the basis of statement of the co-accused, Adil-ur- Rahman recorded under Section 161 Cr.PC., cannot be used against the appellant during trial. No evidence has been collected regarding the appellant forging documents. It has also been argued that the appellant is a businessman who has a firm by the name of Muballig-e-Azam Perfumes in Deoband Saharanpur, and he deals in skull caps and perfumes and other items and his firm is also registered under Micro, Small and Medium Enterprises Development Act, 2006 and he files his Income Tax Returns regularly. From the bank statements of the appellant and his firm, no foreign transactions are evident. In the Recovery Memo/ Seizure Memo no incriminating material could be found, except for a mobile phone and the Investigating Agency could not recover any evidence of the appellant being involved in any conversations or transactions with foreigners. The Investigating Agency has relied upon some conversation with one Mohd. Ahmad while filing charge-sheet whereas such Mohd. Ahmad has not even been made an accused in the charge sheet. (3)

6. Shri Shiv Nath Tilhari, learned A.G.A. for the State- respondent on the other hand has relied upon objections filed by the State-respondent under the signature of Deputy Superintendent of Police, ATS, Lucknow.

7. It has been argued by counsel for the State- respondent that the ATS had received intelligence inputs regarding Rohingyas and Bangladeshis being illegally brought into India by certain Bangladeshi and Indian citizens forming a syndicate and conducting covert operations in various cities/towns of India. Financial assistance was being given through FCRA accounts to build Mosques and run Schools and Charitable Trusts which was also being illegally and surreptitiously being used to finance procuring of forged Indian Passports, Aadhaar Cards, and PAN Cards to be used by Bangladeshi and Myanmar citizens to live in India illegally as Indian citizens with the help of several operators and each had been assigned a different responsibility. Sheikh Najib-ul-Haque of Deoband, Saharanpur, Mohammed Rashid of Deoband Saharanpur, Kafeeluddin of Bangladesh, Abdul Awwal of Delhi, Abdul Gaffar of Delhi, Abu Salleh Mandal of West Bengal, Abdullah Ghazi and Adil-ur-Rahman and Abu Huraira Ghazi, were all members of such syndicate. The appellant Najeeb-ul-Haque used to carry out the work of transferring funds received from abroad either through FCRA Accounts or through Hawala secretly to different accounts maintained by other members of the syndicate which were encashed and sent to illegal Rohingya and Bangladeshi infiltrators, who were then used in Anti-National activities. Abdul Awwal opened online accounts by fraudulently obtaining Aadhaar Cards of residents of Uttar Pradesh, Delhi, Assam, etc., and such Bank accounts were opened with the help of Abdul Gaffar a resident of Delhi. Abu Salleh Mandal of West Bengal who originally belonged to Bangladesh, had created various Trusts for the specific purpose of getting money in FCRA Accounts. Such Trust for example, Harua-Ul-Jamiat Ul-Islamia (4) Darul Uloom Madrasa Kalikapur, and Kabirbaug Milllat Academy Girls College, Sun Sign Health Welfare Society, etc. were used to transfer funds illegally. Accounts were opened in Fino bank through accused Abdul Awwal. Shell Companies/ Firms like Sultana Builders, Jaman Builders, Ghazi Machinery , etc., were set up and fake bills generated in the names of such firms and money was received through FCRA Accounts and through Hawala, which was used to financially help Bangladeshi and Rohingya infiltrators to get forged Indian documents and also travel abroad to carry out terrorist activities. Sheikh Najib-Ul- Haq, along with one Abu Huraira Ghazi who was studying at Darul Uloom Madrasa, Deoband in Saharanpur, was actively involved in sending money into the accounts of such illegal infiltrators and helping them to procure forged Indian identity documents.

8. Investigation has revealed that the accused Najeeb-ul- Haque along with his co-accused had sent money to the bank accounts of Bangladeshis and Rohingyas to help them illegally. The bank statement of Sheikh Najeeb-ul-Haque Account No.50200044982920 in HDFC Bank was retrieved from

19.10.2019 to 17.10.2023 and analysed. The account was maintained in the name of Muballiq-E-Azam Perfumes and showed a total credit of Rs.1,50,76,365/- and a total debit of Rs.1,50,66,827. Such transactions have been found to be with Abdul Gaffar, Kafeeluddin and his landlord Sathish Kumar, accused Abu Huraira Gazi, accused Iftikhar-Ul-Haq (absconding Bangladeshi, in Case Crime No. 244/2022 and in Case Crime No.406 of 2023 registered at Police Station Deoband, Saharanpur) and with the account of Habib-Ul-Misbah, who has been detained in Sub-District Jail, Deoband Saharanpur.

9. In the audio recordings obtained from mobile phone of the accused Najeeb-ul-Haque and the transcript of the intercepted numbers the accused Sheikh Najeeb-ul-Haque was found to be speaking to Mohd. Ahmad on Mobile No.9711231787. In such (5) conversation the accused discussed helping Bangladeshi citizens who had illegally entered India to secure visa for working in Malta. The appellant Najeeb-ul-Haque also assisted Bangladeshi immigrants and transferred money to them which he had received from Bangladesh through Hawala. The audio recordings which were retrieved from his Mobile phone also showed that the appellant used the IMO app and Vikas App to avoid being monitored. The transcripts retrieved from his mobile phone also showed conversations about one Ruby providing money to Kafeel Uddin upon his arrival in Saharanpur. Such conversations confirmed that Kafeeluddin was given Rs.25,000/- by the appellant and also Adil-Ur-Rahman was given Rs.12,000/- for procuring forged Indian documents. Abdul Gaffar and Abu Salleh Mandal had sent Rs.5,00,000/- through one Azim to the appellant, Najeeb-ul-Haque for the purpose. Such call transcripts have been retrieved from the mobile phone of the appellant through the help of Forensic Science Laboratory, Lucknow. Copies of such transcripts have been filed along with the objections to the bail application.

10. It has been argued by Shri S.N. Tilhari that in one of such audio conversations, the appellant has asked the co-accused to talk through IMO App so that no recording of the conversation can be done and the conspiracy may not be discovered. Therefore, it is incorrect to say that the name of the appellant came to light solely on the basis of confession of the co-accused and no incriminating material has been found against the appellant. The material which was collected against the appellant was only confirmed by the co-accused during interrogation.

11. It has further been stated in the objections filed on behalf of the State-respondent that Section 370 of the IPC related to illegal human trafficking has been added during investigation and the said crime is triable by Special Court NIA/ATS. (6)

12. This Court has gone through the material filed along with the affidavit filed in support of the appeal and finds that the Income Tax Returns that have been filed as Annexure-3 to the affidavit only show gross income on an average of only Rs.3 to 5 lakhs per year of the appellant. It is pertinent to note that his bank statements have been found to show transactions of more than one and a half crore rupees.

13. We have also gone through the impugned order dated

24.06.2024, by which the Special Judge NIA/ATS has rejected the bail application of the appellant. The Trial Court has considered various transactions which were brought to light of money being transferred either through Hawala or through FCRA accounts into the account of the appellant, which was later used to help illegal immigrants in procuring forged Indian documents. The data extracted from the mobile phone of the appellant by the Forensic Science Laboratory, Lucknow, and the audio transcripts showed use of IMO App and Vikaas App to avoid being monitored. During interrogation, the appellant had not revealed any such use of IMO App and Vikaas App to talk to Bangladeshis or to transfer money to them.

14. IMO App is a free and secure international calling, messaging and chatting app, which allows the users to share even files with non-IMO app users and offers end to end encryption and disappearing messages making it secure private conversation app, difficult to be monitored. Similarly, Vikaas App is a bundle of apps which has been developed by Google, which also includes apps like ‘bKash‘ which is an online payment app, which is used by Bangladeshi citizens. Through ‘bKash’ accounts, Bangladeshi expatriates can transfer money Internationally by using a Bangladeshi National Identity Card (NID) and registering an account with NID Number, and use their foreign mobile numbers to easily transfer money. (7)

15. The Trial Court has prima facie found the appellant being actively involved in supporting Anti-National Activities by financially helping illegal infiltrators from Bangladesh and Myanmar into procuring forged Indian identity documents and has rejected the bail application. We do not find the said finding of learned trial Court to be erroneous having regard to the material available on record.

16. Thus, having gone through the record and also having regard to the submissions advanced by the learned counsel for the appellant and the learned A.G.A. for the State-respondent, we are of the considered view that the impugned order dated

24.06.2024, whereby the learned trial Court has rejected the bail application of the appellant, does not suffer from any illegality, irregularity or manifest error of law. Therefore, no interference with the same is warranted by this Court.

17. The appeal, being devoid of merit, is accordingly dismissed.

18. It is made clear that observations made hereinabove are only for the purpose of deciding the present appeal and the same shall not be construed as an expression of opinion of this Court on the merits of the matter during the trial. Order date: 11.04.2025 N.PAL NARESH PAL High Court of Judicature at Allahabad, Lucknow Bench