1 wp.1956.05.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1956 OF 2005 Rasiklal Manikchand Dhariwal, Aged 67, residing at 100/101, D.Kennedy Road, Manikchand House, PUNE -1, Maharashtra. ...Petitioner Versus 1.Central Bureau of Investigation, Through its Director, Block IV, CGO Complex, Lodhi Road, New Delhi – 110 003. 2.The State of Maharashtra, Through (D.C.B., C.I.D., Mumbai) ...Respondents WITH CRIMINAL WRIT PETITION NO.2016 OF 2005 Jagdish M.Joshi, Age : 48 years, Residing at 55/12, Raj Apartments, Ashok Path, Law College Road, PUNE – 411 004. ...Petitioner Versus 1.Central Bureau of Investigation, Through its Director, Special Crime Region-III, 7th Floor, Yashwant Place, Chanakya Puri, NEW DELHI – 110 021. 2.The State of Maharashtra, Through its D.C.B. C.I.D., Mumbai. ...Respondents ...... 2 wp.1956.05.sxw Mr.Sushil Kumar, Sr.Counsel with Mr.S.K.Jain, Mr.Hitesh Jain & Ms.Adity Kumar i/b Mr.Subhash Jadhav for Petitioner in Cri.WP/1956/2005. Mr.Shirish Gupte, Sr.Counsel with Mr.Ganesh Gole & Mr.Jaimini Shah for Petitioner in Cri.WP/2016/2005. Mr.Darius Khambatta, Addl.Solicitor General & Sr.Counsel with Mr.Raja Thakare, Ms.Revati Mohite-Dere & Mr.Afroz Shah for Respondent No.1 (CBI). Dr.F.R.Shaikh, A.P.P. for Respondent No.2/State. ...... CORAM:- A.M.KHANWILKAR AND U.D.SALVI, JJ. JUDGMENT RESERVED ON :- 17th SEPTEMBER , 2010. JUDGMENT PRONOUNCED ON :- 8th DECEMBER, 2010. JUDGMENT (Per A.M.Khanwilkar, J.): 1. Both these Petitions can be conveniently disposed of together, as the questions raised in the respective Petitions are common. 2. Shorn of details, the facts which have given rise to filing of the above two Writ Petitions by Rasiklal Manikchand Dhariwal (hereinafter referred to as `RMD’ for the sake of brevity) and Jagdish M.Joshi (hereinafter referred to as `JMJ’ for the sake of brevity), can be set out as under: 3 wp.1956.05.sxw (a) The Petitioners have rushed to this Court essentially on account of order, passed by the Special Court constituted under the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as the `MCOC Act’) for Greater Mumbai, dated 26th July 2005, in Special Case No.1/2005; and also because of non-bailable warrants issued against them in connection with the said case i.e. DCB CID CR No.152/2004. The Petitioner RMD asserts that he is the Chairman of M/s.Dhariwal Industrial Limited, having its registered office at Pune. The said Dhariwal Industries is part of Manikchand Group Industries, which is interalia engaged in the business of Gutka, Panmasala, Bidi, Electrical Accessories, Lamination, Packaging, Mineral Water, etc. for the last 40 years. Whereas, Petitioner- JMJ asserts that he is the Master Blender of Perfumes and Fragrances and holds registered Patent for Mouth Freshener preparation issued by the Government of India. According to him, besides India, he has business establishments carrying manufacturing and blending of Perfumes and Mouth Fresheners’ preparation and U.A.E., Singapore and Indonesia. (b) Both these Petitioners assert that they are not even remotely connected with the criminal case originally registered for offence punishable under the provisions of Section 3 and 25 of the Arms Act and 4 wp.1956.05.sxw Sections 120-B, 384, 387 r/w 34 of the Indian Penal Code (hereinafter referred to as the`I.P.C.’) against one Jamiruddin @ Jumbo @ Kalya Gulam Rasul Ansari and three others. (c) The said F.I.R. was registered on 27th September 2004 as LAC Case being CR No.122/2004. The accused No.1 Jamiruddin came to be arrested on 10th October 2004 followed by another accused namely one Rajesh @ Rajubhai Laxminarayan Panchariya. During the interrogation, the arrested accused allegedly referred to some transaction in Dubai involving both the Petitioners before this Court. It is the case of the Petitioners that they had no connection with the said transaction, in particular, the case under investigation. (d) During the course of investigation of the said case on the basis of material which became available to the Investigating Officer, it was decided to proceed against the named accused persons also for offence under MCOC Act. Accordingly, prior approval of the Joint Commissioner of Police (Crime), Mumbai under Section 23(1)(a) of the MCOC Act was obtained. The said Authority recorded satisfaction that there was sufficient material to disclose that offence of organized crime has been committed by 5 wp.1956.05.sxw the members of the organized crime syndicate as defined in Section 2 of MCOC Act. (e) Being satisfied, the said Authority granted prior approval for applying the provisions of Section 3 of the MCOC Act against the named accused persons along with Sections 120-B, 384, 387 and 34 of the I.P.C. r/w Section 25 of the Arms Act. The said approval order dated 21st October 2004 reads thus: “No.58:/Jt.C.P.(Crime)/U-IX/2004 Office of the Jt.Commissioner of Police (Crime), Brihan Mumbai. Date : 21 October, 2004. O R D E R PRIOR APPROVAL UNDER SECTION 23(1)(a) OF MAHARASHTRA CONTROL OF ORGANISED CRIME ACT, 1999 Reference: Proposal submitted by Asst.Commissioner of Police of (D-1/N-W), Crime Branch, Mumbai seeking prior approval under section 23(1)(a) of Maharashtra Control of Organised Crime Act, 1999, for applying section 3 of M.C.O.C. Act, 1999. I have perused the proposal submitted by A.C.P. Shri Suresh Walishetty, Asst. Commissioner of Police (D-1/N-W), Crime Branch, Mumbai through the Dy.Commissioner of Police (Detention), Mumbai about the involvement of (1) Anis Ibrahim Kaskar, (2) Mohammed Farukh Mansuri, (3) Jamiruddin @ Jambo @ Kalya Gulam Rasul Ansari and (4) Rajesh Laxminarayan Panchariya, seeking prior approval as required under section 23(1)(a) of M.C.O.C. Act, 1999, for applying section 3 of the M.C.O.C. Act, 1999 to DCB CID C.R.No.122/2004 (J.J. Marg Police 6 wp.1956.05.sxw Station C.R.No.249/2004) u/s 120(b) IPC r/w 384, 387, 34 IPC r/w 3, 25 Arms Act. On going through the papers and reports placed before me, I am satisfied that Jamiruddin @ Jambo @ Kalya Gulam Rasul Ansari and Rajesh Laxminarayan Panchariya are in touch with Anis Ibrahim Kaskar through the mobile phones used by them and the documentary evidence gathered so far, shows that they are active members of Organized Crime Syndicate of Anis Ibrahim Kaskar, a faction of Dawood Ibrahim Gang. It also appears that Mohammed Farukh Mansuri is also instrumental in transferring the machines from Dubai to Karachi. From the interrogation and recorded statements of Jamiruddin @ Jambo @ Kalya Gulam Rasul Ansari and Rajesh Laxminarayan Panchariya in DCB CID C.R.No. 122/2004 (J.J.Marg Police Station CR.No.249/2004) u/s 120(b) IPC r/w 384, 387, 34 IPC r/w 3, 25 Arms Act, it has transpired that they are active members of the Organized Crime Syndicate of Anis Ibrahim Kaskar. The arrested accused Jamiruddin @ Jumbo @ Kalya Gulam Rasul Mansuri assisted the Organized Crime Syndicate by arranging the export of 5 machines used for Gutka packing worth of Rs.2,64,000/- obtained by way of extortion by putting the complainant in fear of death. The said machines were manufactured by Rajesh @ Rajubhai Laxminarayan Panchariya and were delivered to Dubai from where the said machines were cleared for onward delivery to Karachi by other active associates of Anis Ibrahim Kaskar namely Farukh Mansuri. Few months back i.e. in the month of July-2004 the said accused persons again delivered spare parts of Gutka Filling .... Pouch Packing Machine to Anis Ibrahim Kaskar. From the evidence on record, I am satisfied that there is sufficient evidence to prove continuous unlawful activities of the organized crime syndicate headed by gangster Anis. I am personally satisfied that this offence amounts to as Organized Crime committed by the members of Organized Crime Syndicate, as defined in Section 2 of M.C.O.C. Act, 1999. Therefore, I, Meeran C.Borwankar, IPS, Jt.Commissioner of Police (Crime), Mumbai, in exercise of the powers conferred upon me under section 23(1)(a) of said Act, 1999, hereby grant prior approval for applying the provision of section 3 of Maharashtra Control of Organised Crime Act, 1999 to DCB, CID, Unit-IX C.R.No.122/04 u/s 120(b) IPC r/w 384, 387, 34 IPC r/w 3, 25 Arms Act and hereafter appoint Shri Suresh Walishetty, Asst.Commissioner of Police (D-1/N-W), Crime Branch, Mumbai to investigate the said case. A.C.P. Shri Suresh Walishetty should obtain the sanction of the Commissioner of Police, Mumbai before filing charge sheet in the case. 7 wp.1956.05.sxw Sd/- (Meeran C.Borawankar) Jt.Commissioner of Police (Crime), Mumbai.” (emphasis supplied) (f) Consequent to the said approval, after registration of offence against the named accused persons, investigation was proceeded also for offence punishable under Section 3 of the MCOC Act. (g) Significantly, neither in the F.I.R. nor the prior approval granted by the Appropriate Authority, any reference is found to the involvement of the Petitioners before this Court in connection with the said offence. Notwithstanding the same, the Investigating Officer in the course of the investigation of the offence as registered, wanted the Petitioners to appear before him. (h) The Petitioners conveyed their inability to appear before the Investigating Officer on the specified dates on the ground that they were out of India in connection with their business activities. It is the case of the Petitioners that they, however, gave assurance to the Investigating Officer that as and when they would return to India, would appear before him. 8 wp.1956.05.sxw (i) However, the Investigating Officer precipitated the matter by moving Application before the Special Court for issuance of non-bailable warrant against the Petitioners herein on the ground that they were not cooperating with the investigation of the offence in question. It is on that Application, the Special Court, proceeded to issue non-bailable warrants against both the Petitioners herein. (j) As soon as the Petitioners learnt about issuance of non-bailable warrants against them, they moved applications before the Special Court for cancellation of non-bailable warrants on the grounds stated in their Applications. The said Applications filed by the Petitioners herein, however, came to be rejected by the Special Court on 1st February 2005. (k) In the meantime, the Investigating Officer after obtaining sanction from the Appropriate Authority as required under Section 23(2) of the MCOC Act, proceeded to file charge-sheet against the named accused on 24th January 2005. The sanction was accorded by the Commissioner of Police, Brihan Mumbai on 21st January 2005, which reads thus: 9 wp.1956.05.sxw “No.01/CP/PA/MCOC/2005 Office of the Commissioner of Police, Brihan Mumbai-400 001. Date – 21/01/2005 ORDER Sanction U/s.23(2) of Maharashtra Control of Organised Crime Act, 1999. REFERENCE : Report of A.C.P., D-1/N-W, Crime Branch, CID, Mumbai dated 17/01/2005 submitted through D.C.P. (Detention) and Jt.Commissioner of Police (Crime), Mumbai. READ : Papers of investigation of DCB CID C.R.No.122/2004, U/sec.120(B) r/w.384, 387, 34 I.P.C. r/w 3(1)(ii), 3(2), 3(4) of MCOC Act, 1999. WHEREAS, the Investigation Officer in the above mentioned case, Suresh Walishetty, Assistant Commissioner of Police, D-1/N-W, CB CID, Mumbai has submitted his report dated 17/01/2005 along with the papers of investigation in DCB CID C.R.No.122/2004, U/sec.120(B) r/w 384, 387, 34 I.P.C. r/w 3(1)(ii), 3(2), 3(4) of MCOC Act, 1999 through the D.C.P. (Detection) and Jt.Commissioner of Police (Crime), Mumbai for according sanction to prosecute the accused persons as required under section 23(2) of MCOC Act, 1999. 2. AND WHEREAS, the prior approval of the Jt.Commissioner of Police (Crime), Mumbai was obtained vide No.591/2004 dated 21/10/2004 for applying the provisions of MCOC Act, 1999 to DCB, CID, CR No. 122/2004. 3. AND WHEREAS, I A.N.Roy, Commissioner of Police, Brihan Mumbai and in the rank of Addl.Director General of Police have gone through the report and on perusal of the statements of the witnesses, other papers of investigation and reports enclosed with the proposal under reference. 4. AND WHEREAS, on going through the case papers, statements and reports placed before me, I am satisfied that prima facie case is made out against the accused persons for being tried for the offences of the India Penal Code mentioned above and under section 3 of MCOC Act. 10 wp.1956.05.sxw 5. AND WHEREAS, I find that in the year 2002 arrested accused by name Jamiruddin @ Jumbo @ Kalya Gulam Rasul Ansari and Rajesh @ Rajubhai Laxminarayan Panchariya assisted the organized crime syndicate headed by Anis Ibrahim Kaskar by arranging the export of five machines used for Gutka packing, worth of Rs.2,64,000/- obtained by way of extortion by putting the complainant in fear of death. Thus they have jointly committed in organized crime on behalf of members of organized crime syndicate headed by Anis Ibrahim Kaskar. 6. AND WHEREAS, I am satisfied that there is sufficient evidence to prove continuous unlawful activities of the organized crime syndicate headed by accused Anis Ibrahim Kaskar and his associates, and more than one charge sheets have been filed before a Competent Court within last 10 years and the Court has taken cognizance of charge sheets against Anis Ibrahim Kaskar and his associates. 7. NOW, THEREFORE, I, A.N.Roy, Commissioner of Police, Brihan Mumbai in the rank of Addl.Director General of Police, in experience of powers conferred upon me by sub-section 2 of section 23 of MCOC Act, 1999, do hereby accord sanction for the prosecution of the 2 arrested accused namely (1) Jamiruddin @ Jumbo @ Kalya Gulam Rasul Ansari, aged 37 yrs, R/o.002, Maqdoom Sea Palace, Ground Floor, B Wing, Kaidal Road, Lane Opp.Jain Mandir, Mahim, Mumbai and (2) Rajesh @ Rajubhai Laxminarayan Panchariya, aged 33 yrs., R/o.B-3/202, Vikas Complex, Castle Mil Compound, Dist-Thane and 2 wanted accused (1) Anis Ibrahim Kaskar, (2) Mohd Farukh Mohd Yasin Mansuri, for the respective offences under section 3 of MCOC Act, 1999 for taking cognizance by the Hon'ble Designated Court, Mumbai constituted for trying such offence under Maharashtra Control of Organized Crime Act, 1999. Given under my signature and seal on this 21 day of January 2005. Sd/- (A. N. Roy) Commissioner of Police, Brihan Mumbai.” (l) According to the Petitioners, the involvement of the Petitioners herein is not disclosed either in the F.I.R. as registered nor in the prior approval granted under Section 23(1)(a) of MCOC Act or for that matter, 11 wp.1956.05.sxw sanction accorded by the Authority under Section 23(2) of the MCOC Act. Moreover, even in the charge-sheet filed before the Special Court, there is nothing to indicate that the Petitioners herein were connected with the commission of offence referred to in the said charge-sheet. Inspite of that, the matter was pursued against the Petitioners herein with respect to the said offence. (m) The further investigation of the alleged offence was entrusted to CBI consequent to Notification issued by the Under Secretary to the Government of India on 9th February 2005. The said Notification reads thus: “228/17/2005-AVD.II GOVERNMENT OF INDIA MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS (DEPARTMENT OF PERSONNEL AND TRAINING) NEW DELHI ******** Dated February 9, 2005 NOTIFICATION S.O. ...................................... In exercise of the powers conferred by sub-section (1) of section 5 read with section 6 of the Delhi Special Police Establishment Act 1946 (Act No.25 of 1946), the Central Government with the consent of the State Government of Maharashtra communicated vide Letter No.`CRM/2005/4/POL-11 dt. Jan 11, 2005, hereby extends the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Maharashtra for 12 wp.1956.05.sxw further investigation of case number 249/2004 of J.J. Marg Police Station, Mumbai, Maharashtra under section 120-B of IPC read with sections 384, 387 and 34 of IPC and sections 3 and 25 of the Arms Act read with Sections 3(1) (ii), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act 1999 relating to nexus between `gutka’ manufacturers and the underworld, and attempts, abetments, conspiracies in relation to, or in connection with the said offences, and any other offences committed in the course of the same transaction or arising out of the same facts. Sd/- (Shubha Thakur) Under-Secretary to the Government of India To The Manager, Government of India Press, Mayapuri, Ring Road, New Delhi-110 064. No.228/17/2005-AVD.II Dt.February 9, 2005 Copy to : 1.The Chief Secretary, Government of Maharashtra, Mumbai. 2.Principal Home Secretary, Government of Maharashtra, Mumbai. 3.Director, CBI, CGO Complex, Lodhi Road, New Delhi. 4.DIG, SCR-III, VII Floor, NDMC Building, Chanakyapuri, New Delhi. 5.Directorate of Prosecution, CBI, CGO Complex, Lodhi Road, New Delhi. Sd/- (Shubha Thakur) Under-Secretary to the Government of India” (n) The Petitioners being dissatisfied with the order of issuance of non- bailable warrants against them, filed Writ Petitions before this Court. (o) Insofar as Writ Petition filed to espouse the cause of RMD being 13 wp.1956.05.sxw Criminal Writ Petition No.421 of 2005 is concerned, the same came to be dismissed on 22nd February 2005. Against the said decision, RMD carried the matter before the Apex Court by way of SLP (Cri.) 1257/2005. Insofar as Petitioner JMJ is concerned, he chose to appear before the Special Court on 25th February 2005 after returning to India from his business trip. Insofar as Petitioner RMD is concerned, the Appeal filed by him before the Apex Court eventually came to be disposed of on 11th April, 2005. In the said proceedings, statement was made by the Solicitor General of India that Petitioner-RMD was cooperating with the investigating agency and his statements have been recorded. Further, the Petitioner RMD filed affidavit to the effect that he will make himself available for further questioning by the police as and when required. On that basis, the non-bailable warrant issued against Petitioner-RMD by the Special Court on 31st December 2004 came to be discharged and the Appeal was disposed of on that basis. (p) According to the Petitioner-RMD, when the case was listed on 24th June 2005 before the Special Court, the Special Judge directed the CBI to submit report regarding further investigation against the named accused as also against wanted accused. Thereafter, on 28th June 2005, the Special Judge passed the following order: 14 wp.1956.05.sxw “I have seen extracts from crime report uptodate, I think in the interest of justice more time is required to be given to the I.O. particularly considering that Shri Rasiklal Manikchand Dhariwal and Shri J.M.Joshi are not readily available to the Investigating Officer for interrogation and co-operation in the investigation, which they had assure. It is expected that the aforesaid persons were granted relief in respect of non bailable warrant issued against them upon condition that they will co-operate with the investigation. If their failure is brought to the notice of the Court, again further appropriate action according to law will have to be taken to bring them before the Court. I.O. prayed for time to file final report hence time is extended till 15/7/2005 for to submit the final report.” (q) According to the Petitioners; the aforesaid observation of the learned Judge of non-cooperation was erroneous and unwarranted. The same was not consistent with the record. In that, on 15th July 2005, the Investigating Officer submitted draft Letters of Rogatory and stated that further material evidence in connection with the alleged offence will have to be collected from abroad. On the basis of the said submission of the Investigating Officer, the Special Court on 15th July 2005, proceeded to observe as follows: “Dated : 15/07/2005. Spl.P.P.Mr.P.Arun for the CBI present. T.O. present. Accused No. produced from custody. Accused No.2 on bail present. Heard. Pursuant to noting dated 28/06/2005 the Investigating Officer from the C.B.I. was directed to submit his report so as to be filed till today. Today draft of letter rogatory mark pages 1 to 96 in one file and page no 1 to 73 in 2nd file along with report about investigation permitted in view of Sec.173(8) of the Cr.P.C. in this case is filed but it appears that the investigating agency is handicapped by the fact that 15 wp.1956.05.sxw some material evidence in this case will have to be collected from abroad. According to I.O. the proposed accused against whom investigation is pending are co-operating and attending whenever required. If that is so I do not think it necessary at this stage pending the investigation against proposed accused to adopt any coercive process so as to compel their attendance before the court. The investigating officer is seeking issuance of letter rogatories to be processed through the Secretary Ministry of External, Affairs Government of India so as to collect further evidence in this case before supplementary charge sheet can be laid in this case as against proposed accused. The I.O. as also Ld.Spl.P.P. Are at liberty to apply before this court for issuance of letter rogatories to be processed through Ministry of External Affairs, Government of India. Such applications be regd. As Misc. applications. According to Spl.P.P. the investigating agency has already moved Ministry of External Affairs for to route the letter of rogatories through proper channel. The investigating agency in view of the fact that material evidence will have to be collected from the countries outside India is permitted to carry on further investigation for to submit supplementary report regarding further investigation permitted in view of sec.173(8) of Cr.P.C. It is also expected that the proposed accused shall attend the investigating officer as and when required. In the event of non-co-operation further process for a compel their attendance before the investigating officer and also before this court will be passed. According to I.O. passport of Shri Jagdish N.Joshi has been surrendered before Sessions Court Satara while Shri Rasiklal Manikchand Dhariwal has not yet surrendered his passport. Shri Rasiklal Manikchand Dhariwal be informed to surrender his passport to the investigating officer until further order from this court. The proposed accused be informed to attend this court of next date of hearing in this case. The investigating agency to expedite the process of investigation so as to submit supplementary charge sheet as early as possible. The interim report with two files regarding further investigation tendered today be kept in envelop sealed under my signature until further order. Adjd. for reporting compliance as to further investigation and also orders passed by this court. Adjd. to 25/07/2005 to allow C.B.I. to move appropriate application before this court. Sd/x.x.x.” 16 wp.1956.05.sxw (r) According to the Petitioners, the Special Court was acting in excess of jurisdiction in not only having issued non-bailable warrants, but also directed the Petitioners herein to surrender their passports inspite of the fact that there was no material before him which would even remotely disclose the involvement of the Petitioners herein in the commission of the alleged offence. Nevertheless, the Petitioners appeared before the Special Court. To their shock and surprise, the Special Court by a speaking order noted that considering the material collected during the investigation of the case before him, the same discloses illegal acts of commission and omission of the Petitioners herein which may amount to aiding and abetting continuing unlawful activities of the organized crime syndicate of Dawood Ibrahim Kaskar assisted by his brother Noora, Mustkin, Hamid Antulay, etc. operating from Dubai (U.A.E.) and Karachi (Pakistan) through their conduits and henchmen in Mumbai and elsewhere. The Special Judge proceeded to observe that it is the duty of the Court trying the case to proceed against all those persons who appear to have been involved in the offences disclosed in the case but who may have been left over or dropped by the investigating agency. The learned Judge observed that further investigation of the case has already been permitted under Section 173(8) 17 wp.1956.05.sxw of the Criminal Procedure Code, 1973 (hereinafter referred to as the `Cr.P.C.’) and which was still in progress. Having said this, the Special Judge proceeded to observe that it may be appropriate to summon the persons who may be indictable as additional accused. In his opinion, it was appropriate that such persons were given prior notice and opportunity to make their statements before the Court as to why they should not be named as additional accused. The Special Judge was of the view that it was open to him to take recourse to such measure in view of Section 319 of Cr.P.C. where after, the noticees can be proceeded against in connection with the alleged offence along with the accused already named in the charge-sheet. He further went on to observe that the noticees were free to make statements to explain their position if they so desire and such statements made by them can be recorded as their defence under Section 313 of the Cr.P.C. The Special Judge has noticed in his order dated 26th July 2005 that the Petitioners herein had objected to the course of action