1 IN IN IN THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL APPEAL NO.544 OF 2001 Gulab Jethanand Khemnani, Age adult, Occupation Business, Resident of C/o 41-B, Ground Floor, Sindhi Society, Chembur, Mumbai - 400 071. (At present Yerwada Central Jail, ...Appellant Pune). (Ori.Accd.No.5) Versus The State of Maharashtra ...Respondent WITH CRIMINAL APPEAL NO.201 OF 2002 Mohd. Parvez Mohd. Jaffar Soda, Residing - Pakistan Nation, (At present lodged in Yerwada ...Appellant Central Prison, Pune - 6) (Ori.Accd.No.1) Versus The State of Maharashtra ...Respondent WITH CRIMINAL APPEAL NO.445 OF 2001 Gullu @ Gul Ghansham Hashmatrai Lakhani, Hindu, aged about 38 years, Permanently residing at Navjivan Society, R.C.Market, Chembur, Mumbai - 400 071, and Presently undergoing sentence at Nasik Road ...Appellant Central Prison, Nasik Road. (Ori.Accd.No.6) Versus The State of Maharashtra (At the instance of Sakinaka Police Station, Mumbai). ..Respondents 2 WITH CRIMINAL APPEAL NO.456 OF 2001 1.Tejas @ Teja Manjibhai Patel, aged about 41 years, residing at Room No.23, Building No.46, B-10, Sector-15, Vashi, Navi Mumbai - 400 705. (Ori.Accused No.7) 2.Ajgarali Kurban Hussain Mandsarewala, aged about 47 years, residing at Essali Palace, IVth floor, Victoria Garden Road, Byculla, Mumbai - 400 008. (Ori.Accused No.8) 3.Raju Ramchand Sachdeo, aged about 41 years, residing at MGA Zopadpatti, Room No.4, Opp. to Building No.26, Chembur Colony, Chembur, Mumbai - 400 074. (Ori.Accused No.9) (All the Appellants are in Jail ...Appellants now lodged at Ahmednagar Central (Ori.Accd.Nos. Prison) 7 to 9) Versus 1.Asstt.Commissioner of Police, Sakinaka Division, Mumbai in respect of Sakinaka Police Station C.R. No.184/99 2. The State of Maharashtra ...Respondents WITH CRIMINAL APPEAL NO.516 OF 2001 Ashok Durgashankar Avasti, Age: 41 yrs., Occ: business, r/o.Khandak Road, Dist.Haveli, Karnataka State. (At present lodged at Yerwada ...Appellant Central Prison, Pune). (Ori.Accd.No.4) 3 Versus The State of Maharashtra, (At the instance of Assistant Commissioner of Police, Sakinaka Police Station, Bombay-400 072). ...Respondent WITH CRIMINAL APPEAL NO.518 OF 2001 Salim Yaqub Kara, Age : Adult, R/at Sector 7, Building NO.60, Room No.9325, Antop Hill, Sion, Mumbai - 400 022. (presently undergoing sentence at Nashik Road Central Prison, ...Appellant Nashik Road). (Ori.Accd.No.3) Versus The State of Maharashtra ...Respondent (At the instance of Sakinaka Police Station, Mumbai). ...... Mr.Naveen Chomal for appellant in Appeal No.544 of 2001(org.accused No.5) Mr.U.S.Vanjara for appellant in Cr.Appeal No.201 of 2002(org.accused No.1) Mr.Anil Lalla i/b Lalla & Lalla for appellant in Cr.Appeal No.445 of 2001(org.accused No.6) Mr.S.G.Rajput for appellant in Cri.Appeal No.456 of 2001(org.accused No.7 to 9). Mr.Amit Sale i/b. M.L.Patil for appellant in Cr.Appeal No.516 of 2001(org.accused No.4). Mr.Q.A.Siddiqui, for appellant in Cri.Appeal No.518 of 2001(org.accused No.3) Dr.S.S.Tatkare, APP for State in all the matters. ...... 4 CORAM: CORAM: CORAM: A.M.KHANWILKAR,J A.M.KHANWILKAR,J A.M.KHANWILKAR,J DATE DATE DATE : DECEMBER 20/22, 2006. : DECEMBER 20/22, 2006. : DECEMBER 20/22, 2006. JUDGMENT JUDGMENT JUDGMENT : : : 1. All these appeals can be disposed of together by a common judgment. These appeals are filed by accused Nos.1 and 3 to 9 against the Judgment and Order dated 7th June, 2001 passed by Special Judge under Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as ‘MCOCA’), Greater Bombay, in M.C.O.C.Special Case No.3 of 1999. The accused No.2 has died. In so far as accused No.3 is concerned, he is reported to be absconding. As none appeared for him, I thought it appropriate to appoint advocate Siddiqui to espouse the cause of accused No.3 as amicus curiae. 2. The prosecution case is that, on 2nd July, 1999, a secret reliable information was received by the North-West Region of Mumbai Police about some persons likely to transact and carry on or engage in the deal of fake or counterfeit Indian currency from Twilight building in Raheja Vihar Housing Complex. On receipt of the said information, API Mr.Nadgouda and Mr.Pirjadhe working in North-West Region, Mumbai 5 Police, gave intimation in that behalf to the Sakinaka police. The Sakinaka Police were also informed about the possibility of offenders running away by motor car. On receipt of this information, Police Inspector Padwal (P.W.21), PSI Repale (P.W.14) and staff of Sakinaka Police Station formed a team and proceeded towards Raheja Vihar Complex. They waited near thee gate for sometime. At about 1.30 a.m., they noticed a Tata Estate car bearing No.MH-01-R-4594 approaching near the security gate of Raheja Complex. The same was intercepted by the raiding party. Gulab Jethanand Khemnani-accused No.5 and Salim Yaqub Kara-accused No.3 were found inside the car. Accused no.5 was driving the car. The accused No.3 and 5 were searched separately on the spot. During the said search, the accused were found in possession of huge quantity of counterfeit currency notes (in the sum of Rs.5,50,000/-), which were immediately seized under panchanama. On further interrogation of accused Nos. 3 and 5, they led the police party to flat No.4 of Twilight building in Raheja Complex. Mohd. Parvez Mohd. Jaffer Soda-accused No.1, Kishore @ Lala Chetanmal Lalwani-Accused No.2 and Ashok Durgashankar Awasti-Accused No.4 were found inside the said flat. The accused No.1 is a Pakistani national and was found in possession of counterfeit notes (Indian currency) 6 in the denomination of Rs.500/- in the sum of Rs.3 Lakhs. Search of Accused No.2-Kishore Lalwani, who was another occupant of the flat, was taken. From his personal search six bundles each consisting of 100 fake or counterfeit notes in the denomination of 500 (Rs.3 Lakhs) were found. Search of Accused No.4-Ashok Awasti, who was also found in the said flat, was taken. He was found in possession of fake or counterfeit notes of total sum of Rs. One Lakh in the denomination of Rs.500/-. In addition, genuine Indian currency notes in the total sum of Rs.2,70,000/- were also found in a carry bag in the flat. All these five accused were taken to the Sakinaka Police Station and a case was registered, being C.R.No.184 of 1999, under sections 489-A, 489-B, 489-C, 467 r/w 120B read further with section 34 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘I.P.C.’). It is the prosecution case that the accused No.3 during the interrogation, volunteered that he had kept some counterfeit currency notes in a house and was willing to point out the same. On the basis of such disclosure made by accused No.3 the police party alongwith panchas went to the place shown by him, which was his house in Antop Hill Central Government Servants’ Colony. From the said house, seven bundles each containing 100 fake or counterfeit currency notes 7 in the denomination of Rs.500/- of total sum of Rs.3,50,000/- as also genuine Indian currency notes valued about Rs.5,90,000/- were seized at his instance under panchanama. According to the prosecution, during interrogation it was learnt that the accused No.2 had handed over some counterfeit Indian currency notes to accused Nos. 6 to 9. On that information, accused Nos. 6 to 9 were arrested on or about 9th July, 1999. Each of these accused during interrogation showed willingness to disclose the place where they had kept the counterfeit notes received by them. Each of these accused Nos.6 to 9 led the police to recover counterfeit notes from the places shown by them. The accused Nos. 6, 7 and 8 are concerned, each of these accused have contributed to the recovery of three counterfeit notes in the denomination of Rs.500/- respectively. Whereas, the accused No.9 led to the recovery of two counterfeit notes of Rs.500/- each. Counterfeit currency notes recovered at the instance of accused Nos. 6 to 9 were seized under separate panchanama. The prosecution case is that during the investigation, it transpired that the accused were engaged in continuing unlawful activities as members of an Organised Crime Syndicate. The unlawful activities were carried on with the objective of gaining pecuniary benefits and to destabilise the 8 national economy. On the basis of available information, the concerned officer made recommendation to the appropriate authority to grant prior approval for registration of offence under the provisions of MCOCA, as the provisions of MCOCA had already come into force by way of MCOCA Ordinance, 1999. After prior approval was granted by the concerned Authority, offence under provisions of M.C.O.C. Act came to be registered against the named accused. After application of MCOCA provisions, investigation was proceeded by Assistant Commissioner of Police Mr. Patil (P.W.22) and after him, by Assistant Commissioner of Police Mr.Nimgaonkar (P.W.23), aided and assisted by other police officers under their control. 3. According to the prosecution, during the investigation accused No.5 showed willingness to give his confessional statement. Accordingly, Investigating officer produced the accused no.5 before the Officer competent to record such confessional statement under the provisions of MCOCA. The said officer in turn himself after being satisfied that the accused No.5 was willing to make disclosure or confessional statement voluntarily and without any pressure whatsoever, only then proceeded to record the 9 confessional statement given by him. In his confessional statement accused No.5 has spoken about the details as to how he got into this unlawful activity. He has disclosed about the involvement of different persons and that similar operations have since been carried on with a view to make financial gains and also to destabilise the national economy. He has named the concerned persons who are mastermind and those who were associated with the said unlawful activity, which was being carried on for some time. During the course of investigation, printout of the telephone numbers furnished by the accused was taken out; and from the said printouts it was evident that the accused were in constant communication interse. Besides it was noticed that frequent calls were made by the accused to Karachi in Pakistan and Dubai on telephone numbers which purportedly belonged to one Tariq @ Baba (A 12) based in Karachi who was the henchman of Dawood Ibrahim Kaskar (A 11). On conclusion of the investigation, charge sheet came to be filed against the accused including five others. In all 14 accused have been named by the prosecution as engaged in the continuing unlawful activity as an Organised Crime Syndicate including mastermind Dawood Ibrahim Kaskar and Tariq Baba. However, as the accused Nos. 10 to 14 are absconding and wanted 10 accused, the trial proceeded only against accused Nos. 1 to 9 who were in custody. The Special Court on the basis of material before it proceeded to frame charges against accused Nos. 1 to 9, which read thus: "FIRSTLY: That you accused nos. 1 to 9 abovenamed are members of the organised crime syndicate/gang aided by Dawood Ibrahim Kaskar operating from Karachi (Pakistan) indulging into unlawful activities since July 1998 in Mumbai and in other parts of India with common object of gaining undue economic or other advantages for yourselves singularly and jointly, as the members of the organised crime syndicate mentioned above in pursuance of criminal conspiracy hatched between you and Dawood Ibrahim Kaskar’s O.C.S. to indulge into unlawful activity to distribute fake or counterfeit currency notes in the denomination of Rs.500/- of Indian currency with object of gaining pecuniary benefits or such other advantage to yourselves and with a view to create chaos in the Indian currency notes system and economy and thereby you had committed an offence punishable under section 120-B I.P.C. read with section 3(4) of the M.C.O.C Act 1999 and therefore within the cognizance of this Court. SECONDLY: On 2.7.1999 at about 1.00 a.m. near the gate known as Raheja Security Gate, Raheja Vihar Housing Complex, Powai, Mumbai you accused no.3 Salim Yaqub Kara and you accused no.5 Gulab Jethanand Khemnani while you were travelling in a motor car bearing No.MH-01-R-4594, the said car was intercepted by police and searched you accused no.5 Gulab Jethanand Khemnani was found in possession of fake or counterfeit currency notes totalling sum of Rs.50,000/- in the denomination of Rs.500/- of Indian currency while you accused no.3 Salim Yaqub Kara was found in possession of fake or counterfeit currency notes totalling sum of Rs.5 Lakhs in the denomination of Rs.500/- of Indian currency 11 notes. Thus you possessed counterfeit or fake currency notes knowing or having reason to believe that the same are forged or counterfeit currency notes, you had intended to use them a genuine Indian currency notes and thereby you had committed an offence punishable under section 120-B read with section 489(C) of the I.P.C. as you were found in possession of counterfeit currency notes in pursuance of criminal conspiracy at the instance of or on behalf of the organised crime syndicate head by Dawood Ibrahim Kaskar Operating from Karachi (Pakistan). THIRDLY: On 2.7.1999 during the same night at about 3.00 a.m. at room No.004 in the Twilight Building, Raheja Vihar Housing Complex, Powai, Mumbai, you accused No.2 Kishore @ Lala Chetanmal Lalwani was found in possession of fake or counterfeit currency notes totalling sum of Rs.3 Lakhs in the denomination of Rs.500/- of Indian currency notes as also one Ericson mobile phone while you accused no.4 Ashok Durgashankar Awasti was found in possession of fake or counterfeit currency notes of total sum of Rs.1 lakh in the denomination of Rs.500/- of Indian currency notes as also you were found in possession of genuine Indian currency notes in the total sum of Rs.2,70,000/-. While you accused no.1 Mohd.Parvez Mohd.Jaffar Soda was found in possession of Pakistan Passport bearing No.E163607 and Pakistan Airline ticket as also in possession of fake or counterfeit currency totalling sum of Rs.3 Lakhs in the denomination of Rs.500/- or Indian currency notes. Thus you all were knowing or were having reason to believe that the fake or counterfeit currency notes were intended to be used as genuine in the Indian currency system with a view to destroy India’s economy in pursuance of criminal conspiracy hatched at the instance of organised crime syndicate of Dawood Ibrahim Kaskar operating from Karachi (Pakistan). Thus you all have committed an offence punishable under section 120-B read with section 489(C) of I.P.C. FOURTHLY: You accused no.2 Kishor @ Lala Chetanmal Lalwani in pursuance of criminal conspiracy as stated above distributed fake or 12 counterfeit currency notes in the denomination of Rs.500/- of Indian Currency notes to various persons including you accused no.6 Gullu @ Gul @ Ghansham Hasmatrai Lakhani, you accused no.7 Tejas @ Teja Manjibhai Patel, you accused no.8 Ajgarali Kurban Hussain Mandsarewala and you accused no.9 Raju Ramchand Sachdeo. Thus you accused no.2 in pursuance of the criminal conspiracy trafficked in counterfeit or fake currency notes in the denomination of Rs.500/- of Indian currency notes knowing or having reason to believe that the same were counterfeit or fake currency notes, thereby you accused no.2 had entered into criminal conspiracy with you accused No.6, you accused no.7 you accused no.8 and you accused no.9 as you have committed an offence punishable under section 120-B read with section 489(B) of the I.P.C. FIFTHLY: Thus since July 1998 more particularly in July, 1999 you accused nos. 1 to 9 in pursuance of criminal conspiracy hatched with organised crime syndicate aided by Dawood Ibrahim Kaskar operating from Karachi(Pakistan) you had derived fake or counterfeit Indian currency notes of the denomination of Rs.500/- for total sum of Rs.16,05,500/- and trafficked in the same to obtain illegal monetary advantage in the genuine currency notes in the sum of Rs.8,60,000/- obtained from the commission of organised crime or acquired through the organised crime syndicate funds. Thus you have indulged into organised crime punishable under section 120-B I.P.C. read with section 3(1)(II) of the M.C.O.C.Act 1999. SIXTHLY: You accused nos. 1 to 9 on the date, time and place mentioned aforesaid in pursuance of your criminal conspiracy were found possessing unaccountable wealth in the form of genuine currency notes in the sum of Rs.8.60,000/- derived or obtained from the commission of organised crime or acquired through organised crime syndicate, thereby you have committed an offence punishable under section 120-B I.P.C. read with section 3(5) of the M.C.O.C.Act 1999. 13 SEVENTHLY: Further on the aforesaid date, time and place you accused nos. 1 to 9 having entered into criminal conspiracy at the instance of organised crime syndicate of Dawood Ibrahim Kaskar operating from Karachi, Pakistan were associated with each other knowingly facilitated the organised crime in pursuance of the criminal conspiracy hatched in secret with Dawood Ibrahim Kaskar operating from Karachi (Pakistan) and with members of organised crime syndicate, thereby each of you have committed an offence punishable under section 3(2) of the M.C.O.C.Act 199 read with section 120-B I.P.C read further with section 489(A & B ) of the I.P.C EIGHTHLY: That you accused no.1 Mohd. Parvez Mohd. Jaffar Soda and you accused No.2 Kishor @ Lala Chetanmal Lalwani knowingly furnished false information or suppressed material information with a view to obtain a passport and thereby you accused no.1 and accused no.2 have committed an offence punishable under section 12(1)(b) of the Passport Act and therefore within the cognizance of this court." 4. The prosecution examined as many as 26 witnesses. Besides the oral evidence, prosecution also relied on the documentary evidence. On analysing the evidence on record, the trial court, in the first place, held that there is no legal evidence to proceed against the accused that they were "members of" the Organised Crime Syndicate as such. However, the trial Court then held that there is evidence to hold that accused Nos. 1 to 5 were party to the conspiracy for carrying on unlawful activities of the Organised crime Syndicate. The trial Court has positively held that 14 the evidence against the accused No.6 to 9 was not adequate to record similar finding against them. The trial Court then accepted the prosecution case that the accused Nos. 1 to 9 were found in possession of counterfeit notes as well as genuine Indian currency notes in huge quantity, in particular accused Nos. 1 to 5. Consistent with the reasoning given in the Judgment, the trial Court proceeded to pass order on 7th June, 2001 which reads thus: "ORDER 1. Accused nos. 1 to 5 are found guilty and convicted for offences punishable under section 120-B I.P.C. and Section 3(2) r/w section 2(1)(a) of the M.C.O.C.Act 1999 and each of them are sentenced to suffer R.I. for 10 years and fine in the sum of Rs.5 lakhs payable by each of them. In default of payment of fine each of them shall undergo further R.I.for one year. 2. Accused nos. 1 to 5 are also found guilty and convicted for offences punishable under sections 489-B and 489-C I.P.C. read with section 120-B I.P.C. and each of them are sentenced to suffer R.I.for 5 years and fine in the sum of Rs.5000/- payable by each of them. In default of payment of fine each of them shall undergo further R.I.for six months. 3. Accused nos. 1 to 5 are also found guilty and convicted for offence punishable under sections 3(5) read with sections 4 of the M.C.O.C. Act, 1999 read further with section 120-B I.P.C.and each of them are sentenced to suffer R.I.for 5 years and fine in the sum of Rs.2 Lakhs payable by each of them. In default of payment of fine each of them shall undergo further R.I. for three months. 15 4. However, for offences under section 12(1)(b) of the Passport Act as against accused nos. 1 and 2 they are found not guilty for want of evidence. Hence they are acquitted of offences punishable under section 12(1)(b) of the Passport Act. 5. Further the offences punishable under section 3(1)(ii) and section 3(4) of the M.C.O.C.Act 1999 are held not proved as against accused nos. 1 to 9 though they were charged accordingly. Hence they are hereby acquitted of offences under section 3(1)(ii) and section 3(4) of the M.C.O.C.Act 1999. 6. Further the offences under sections 3(2), r/w 2(1)(a), 3(5) r/w sec. 4 of the M.C.O.C.Act read further with section 120-B I.P.C.are held not proved as against accused nos. 6 to 9. Hence they are hereby acquitted of offences punishable under sections 3(2) r/w section 2(1)(a), 3(5) read with section 4 of the M.C.O.C.Act read further with section 120-B I.P.C. 7. Accused nos. 6 to 9 are found guilty and convicted for offences punishable under sections 489-B and 489-C I.P.C. and sentenced to suffer R.I. for 3 years each and fine in the sum of Rs.3000/- each. In default of payment of fine each of them shall undergo further R.I. for a period of three months. 8. Substantive sentences of imprisonment to run concurrently with each other except sentences imposed in default of payment of fine. Each of the accused is entitled for set-off for period imprisonment already undergone. 9. The genuine currency notes seized in this case shall stand forfeited to the State Government and shall be deposited in the State Treasury. 10. Fake or counterfeit currency notes seized in the present case shall be sent to the Government Mint through Commissioner of Police, Mumbai for final disposal or destruction according to law. 16 11. Article no.13 Mobile phone of Ericson make shall be sold by auction after Appeal period is over and sale proceeds thereof shall be deposited in the State Treasury as it also stands forfeited to the State Government. 12. The Pakistani Passport, identity card and Pakistan Airline ticket recovered from accused no.1 Mohd. Parvez Mohd. Jaffer Soda shall be returned to the accused no.1 after he serves out his sentences as directed and subject to decision in the Appeal if any. 13. The case shall remain on dormant file as against wanted accused named in the charge sheet and the case shall revive on application by the prosecution when wanted accused are traced and brought to justice. 14. The Judgment dictated in the open court would require few days time for transcription thereof. hence the accused be called to collect copy of judgment on 20th June, 2001." 5. It appears that the accused No.2 has not filed any appeal questioning the correctness of the finding of guilt recorded against him by the trial Court. It is also seen that the accused No.2 has died on 5th June, 2005. Significantly, the finding of no guilt against accused Nos.1 to 9 for offences under Sections 3(1)(ii) and 3(4) of M.C.O.C.A; accused Nos.6 to 9 additionally for offences under Section 3(2) r/w 2(1)(a), 3(5) r/w 4 of MCOCA r/w Section 120B of I.P.C.; and accused Nos.1 and 2 of Section 12(1)(4) of the Passport Act, has not been challenged before this Court. 17 6. For the sake of completeness of narration of events, it needs to be noted that although the accused No.3 has filed appeal before this Court being Criminal Appeal No.518 of 2001, however, the said appellant is reported to be absconding. At the commencement of the hearing of the companion appeals, therefore, I thought it necessary to appoint an advocate to espouse the cause of accused No.3 as amicus curiae. This was done with a view that if the appeals filed by similarly placed co-accused were to succeed, the benefit of that decision would become available to accused No.3 as well. Even at short notice Mr. Siddiqui, advocate accepted the request to appear as amicus curiae for accused No.3. Notably, Mr.Siddiqui gave able assistance to this Court and presented the case of accused No.3 from different perspective. Although I heard Mr.Siddiqui for accused no.3 on merits, I am disposed to dismiss the appeal of accused No.3, being a fugitive accused. It is well established that remedy of appeal is a statutory right. The convict cannot be permitted to pursue the appeal while he is absconding. For, one who approaches the Court should do so with clean hands. If any authority is required in support, it will be useful to refer to the Judgment of the Division Bench in the case of Vijay Vijay Vijay 18 S.Kshirsagar S.Kshirsagar S.Kshirsagar vs. State of Maharashtra reported in vs. State of Maharashtra reported in vs. State of Maharashtra reported in 2004 2004 2004