-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPLICATION NO.572 OF 2004 Ranjitsing Brahmajeetsing Sharma, Retired (Commissioner of Police, Mumbai & Addl. Director General of Police, Maharashtra), residing at 20, Suniti, Opposite Mantralaya, Mumbai-400 032 (At presently detained as Under Trial Prisoner in Yerawada Central Prison, Pune. .. Applicant Vs 1. The State of Maharashtra, through the Secretary, Home Department, Government of Maharashtra, Mantralaya, Mumbai-400 032. 2. The Union of India, (through the Central Bureau of Investigation) having its Head Office at Delhi and Regional Office at Tanna House, Colaba, Mumbai .. Respondents. Mr.V.R.Manohar, Senior Advocate, with Mrs Usha -2- Dahanukar, Mr Shrikant Shivade, Ms Akhila Kaushik, Shyam Dewani i/b Khaitan & Jaykar for the applicant. Mr. Lalit Chari, Senior Advocate with Mr R.B.Thakare and Mr A.M.Chimalkar, for the respondents. Mr V.B.Konde-Deshmukh, APP for respondent -State. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. DATE : 16th JULY, 2004 DATE : 16th JULY, 2004 DATE : 16th JULY, 2004 JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard Mr.Manohar, learned Senior Counsel, for the applicant and Mr.Chari, learned Senior Counsel, for respondent no.2-CBI and Mr V.B.Konde-Deshmukh, learned Addl.Public Prosecutor for respondent no.1-State. 2. This application raises several questions of law and some of them pose very serious questions of far reaching consequences. It is filed by the applicant under sections 439 and 482 of the Code of Criminal Procedure for being released on bail in C.R.No.135 of 2002 registered at Bund Garden Police Station under the various provisions of Indian Penal Code and sections -3- 3(2)(5) with particular reference to section 2(1)(a) and (b) and section 24 of Maharashtra Control of Organised Crime Act, 1999 (for short, "MCOCA"). His application seeking bail under section 21(4)(b) of MCOCA was rejected by the learned Special Judge (Under MCOCA), Pune, by order dated 19.1.2004. 3. The crime was initially registered by Bund Garden Police Station for offences under sections 120-B, 255, 249, 260, 263A(b), 478, 472 and 474 read with section 34 of IPC against the three accused who came to be arrested on 7.6.2002. As the investigation progressed, the investigating agencies kept on adding several persons as accused, consisting of Politicians, Government Officials, I.P.S. Officers, Police Officers etc, and, as of today, about 65 accused have been shown arrested in C.R.No.135/02. The applicant, former Commissioner of Police, Mumbai, is arrayed as Accused no.60 in the said crime. The provisions of MCOCA were invoked by the investigating agency on 3.9.2002. The applicant came to be arrested on 1.12.2003. He was in police custody until 6.12.2003. -4- 4. The investigation was being conducted by Bund Garden Police Station which was taken over subsequently by the Special Investigating Team, (SIT) constituted vide Government of Maharashtra Resolution No.CII/2002/ 389/POL-12 dated 2.12.2002. Thereafter, the investigation was taken over by the Central Bureau of Investigation, (CBI) in pursuance of the order of the Apex Court dated 15.3.2004. The investigation in this case still continues. 5. Factual matrix that would be relevant and material for deciding the present application, in brief, is as follows:- The applicant was the Commissioner of Police, Pune from 30.4.2000 to 31.12.2000 and the Commissioner of Police, Mumbai from 1.1.2003 to 30.11.03. Before he was appointed as the Commissioner of Police, Pune, he occupied the posts of Inspector General/ Additional Director General, Konkan Range, Commissioner (Intelligence) for State of Maharashtra, Commissioner of Police, Nagpur, Pune, Mumbai etc. He claims that he has rendered unblemished and meritorious service all throughout -5- and is a recipient of various prestigious awards. On 7.6.2002, while the applicant was Commissioner of Police, Pune, he received information that on that very day three persons in silver coloured Indica car bearing no.10-H-04-A1-200 were coming from Mumbai towards S.T.Stand near Pune Railway Station with fake stamp papers for delivery. He conveyed this telephonically to Bund Garden Police Station. On 7.6.2002 in pursuance of the said information, the Indica Car was intercepted by the Officials of Bund Garden police station and three accused alongwith fake stamps worth about 200 Crores came to be arrested. First Information Report was lodged by PI Kale and was recorded by PI Deshmukh of Bund Garden police station and an offence vide Crime No.135/2002 came to be registered. Extensive investigation was launched. Number of places were raided and huge quantity of stamps, printing machinery worth Rs.21,28,47,63,824/- were seized from various accused persons. The inmates of the said car were (i) Mukadam Hussain Mohd. Sub Tadkod (driver), (ii) Shankar Rajaram Ganappa, (iii) Mohd. Moulali Gaus Siggve. -6- Initially, the investigation was being conducted by PI Mr.Deshmukh under day-to-day direct supervision of Additional C.P. (Crime) Mr.S.M.Mushrif. Mr.Mahesh Gauri was the immediate superior of Mr.Mushrif being the Joint Commissioner of Police. Mr.Mushrif was incharge of the Crime Branch, Pune. Several teams consisting of various officers were appointed for carrying out the investigation of this crime. A team was also formed for field work, which was consisting of Mr. Mulani, Assistant Commissioner of Police (Crime Branch), Pune (for short, "Mulani") and other officers. The applicant, being the Commissioner of Police, was overall in-charge of the area of commissionerate. Looking to the volume and magnitude of the "fake stamp case" and wide spread activities a proposal to invoke the provisions of MCOCA was forwarded by PI Deshmukh on 9.7.2002. On 26.8.2002 PI Deshmukh requested the Joint Commissioner of Police for invoking the provisions of MCOCA, as statutory period of 90 days was to expire on 3.9.2002. On 3.9.2002, the Joint Commissioner of Police Mr.Maheshgauri, granted prior approval under -7- section 23(1) of MCOCA against accused No.23- Abdul Karim Ladsa Telgi (for short, "Telgi" ) and Accused No.25 Mr.Shabir Sheikh. However as the statutory period of 90 days was coming to an end the first Chargesheet was filed against 23 accused on 3.9.2002. In pursuance of the proposal submitted by DCP Wakade, Mr Jaiswal, DIG, SRPF, Mumbai granted an approval to invoke the provisions of MCOCA against all the accused on 22.11.2002. After invoking the provisions of MCOCA, DCP Dr.Jai Jadhav took over the investigation of crime no.135/02. 6. In so far as the allegations against the applicant and his role is concerned, a reference would be made to it at a later stage. 7. The applicant came to be arrested in C.R.No.135/02 on 1.12.2003. The applicant filed an application before the learned Special Judge under section 21(4)(b) of MCOCA claiming himself to be absolutely innocent, stating that even if all the allegations are taken as true, the provisions of MCOCA are not applicable, and, therefore, he cannot be continued in incarceration any further. -8- 8. I heard Shri V.R.Manohar, learned senior counsel for the applicant, Shri Lalit Chari, learned senior counsel and Mr R.B.Thakare, learned counsel for the respondent-CBI and Mr V.B.Konde-Deshmukh, learned APP for the respondent-State, at length. With the assistance of the learned senior counsel appearing for the parties, I have perused the entire material placed before me. The learned senior counsel appearing for both the sides advanced lengthy submissions on the questions of law and facts and cited various judgments of the Apex Court and High Courts. As I have stated at the outset, that as the questions involved and raised in the instant application have far reaching consequences, I would like to deal with the contentions urged by the learned senior counsel at an appropriate stage in detail. 9. The submissions of Mr Manohar, learned senior counsel for the applicant are as follows. The underlying principles in section 437 of Cr.P.C. point more towards grant of bail, except in cases where there are reasonable grounds for believing that the accused has been guilty of -9- an offence punishable with death or life imprisonment. He placed reliance on the judgments of the Apex Court in Gurucharan Singh Vs. State, Gurucharan Singh Vs. State, Gurucharan Singh Vs. State, AIR 1978 SC 179 AIR 1978 SC 179 AIR 1978 SC 179 and Gudikanti Narasimhulu Vs.Public Gudikanti Narasimhulu Vs.Public Gudikanti Narasimhulu Vs.Public Prosecutor, AIR 1978 SC 429. Prosecutor, AIR 1978 SC 429. Prosecutor, AIR 1978 SC 429. Mr.Manohar further submitted that the Court while considering an application for bail with reference to section 21(4)(b) is not called upon to record a finding of being guilty, and has only to see, if there are reasonable grounds for believing that the accused is not guilty and record its findings about the existence of such grounds. Since the provisions of MCOCA and the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 or Terrorist and Disruptive Activities (Prevention) Act, 1987 are similar, Mr Manohar placed reliance upon the judgments under the provisions of those Acts and submitted that the provisions of section 21(4)(b) is not to be equated with section 248 of Cr.P.C which demands acquittal on finding of not guilty. The Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and record its satisfaction about the existence of such -10- grounds. In support, a reliance was placed on the judgments of this Court in Lorance D’souza Vs. Lorance D’souza Vs. Lorance D’souza Vs. State of Maharashtra & Anr, 1992 Cri.L.J.399 State of Maharashtra & Anr, 1992 Cri.L.J.399 State of Maharashtra & Anr, 1992 Cri.L.J.399 (Bombay), Gopal Rajlingam Avalara Vs. State of (Bombay), Gopal Rajlingam Avalara Vs. State of (Bombay), Gopal Rajlingam Avalara Vs. State of Maharashtra, III (1995) CCR 482 Maharashtra, III (1995) CCR 482 Maharashtra, III (1995) CCR 482. Mr.Manohar invited my attention to the judgment of the Apex Court in Nivranjansingh Vs. Nivranjansingh Vs. Nivranjansingh Vs. state of Maharashtra, AIR 1990 SC 962 and Hitendra state of Maharashtra, AIR 1990 SC 962 and Hitendra state of Maharashtra, AIR 1990 SC 962 and Hitendra Thakur Vs. State of Maharashtra, 1994 (4) SCC 602 Thakur Vs. State of Maharashtra, 1994 (4) SCC 602 Thakur Vs. State of Maharashtra, 1994 (4) SCC 602 and contended that the provisions of stringent penal acts need not be resorted to if the nature of activities of the accused can be checked and controlled under the ordinary law of the land. The Courts should always consider carefully the material available on record and apply their mind to see whether the provisions of such Act are even prima facie attracted. Mr.Manohar further submitted that the allegations levelled against the applicant, as borne out from the chargesheet filed before the Special Court, are baseless. He took me through several documents and contended that the applicant was innocent in respect of Mulani or Cuffe Parade flat episode and he cannot be said to have aided or -11- abetted either Mulani or Kamat in committing the organised crime or helped or supported the organised crime syndicate of Telgi. The commission of acts and omissions of the applicant could at the most be termed as dereliction of duty. Mr. Manohar submitted that if the provisions of MCOCA are, prima facie, not attracted, qua the present applicant, the applicant is entitled to bail in routine course. He further submitted that no offence under section 3(2)(5) or section 24 of MCOCA is made out against the applicant. In order to avoid repetition, the other submissions of Mr Manohar, would be referred to and dealt with at appropriate place. 10. On the other hand, Mr.Chari, learned senior counsel appearing for CBI, submitted that this is not a case involving few persons or individuals which can be shown to have been accomplished by a particular time. This case begins with Telgi entering into the business of dealing in counterfeit stamps and stamp papers and even before he is shown to have acquired machinery -12- for its fabrication. His activities started since 1992-93 and were on a large scale spreading all over India. Some politicians, security personnel and police officers are involved in this case. Telgi was placed under arrest in November, 2001. However, according to Mr Chari, there is an evidence that the sales of these counterfeit stamps and stamp papers continued in 2002-2003, offices were opened at New Bombay, Pune, Nashik, Ahamadabad, Bhopal, Lucknow, Trichy etc. Recoveries were made right upto the year 2002 and they continued to be made even in 2003. He, therefore, submitted that what emerges is a picture of an organised apparatus set up for business of dealing in counterfeit stamps and stamp papers on a large scale which could match even a well organised legitimate business activity in this country and with, perhaps, more efficiency. Mr Chari made specific reference to the definition of "abet" in section 2(1)(a) to contend that the communication or association with any person with actual knowledge or having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate, amounts -13- to abetment. This was with the specific reference to the communication and association of the applicant with Mulani. He further submitted that the acts and omissions of the applicant squarely constitute an offence under sections 3 and 24 of MCOCA. Mr.Thakare, learned counsel assisting Mr Chari, learned senior counsel, took me through the voluminous record to demonstrate the association of the applicant with the tainted police officers, in particular Mulani and Kamat, and submitted that the acts and omissions of the applicant, undoubtedly, establish prima facie case against the applicant and it cannot be said that there are no reasonable grounds for believing that the applicant is not guilty of such offence. Other submissions of Mr Chari would be referred to and dealt with at an appropriate place. 11. Section 21(4)(b) of MCOCA deals with the powers of the Court in respect of grant of bail to a person accused with the crime under the provisions of MCOCA. Therefore, while applying the underlying principles in section 437 of Cr.P.C for -14- granting bail to the accused, who is charged with the provisions of MCOCA, the mandate of section 21(4)(b) will have to be borne in mind. The Court granting bail under section 21(4)(b) is expected to exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation on merits of the case need not be undertaken, there is a need to indicate in such order reasons for prima facie concluding why bail was being granted or refused. The Apex Court has, time and again, held that any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court granting bail to consider, among other circumstances, the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence coupled with reasonable apprehension of tampering of witnesses. The Apex Court in Ramgovind Upadhaya Vs. Sudash Ramgovind Upadhaya Vs. Sudash Ramgovind Upadhaya Vs. Sudash Singh, 2002 (3) SCC 598 Singh, 2002 (3) SCC 598 Singh, 2002 (3) SCC 598 has clearly held that grant of bail, though is a discretionary order calls for exercise of such a discretion in a judicious manner and not as a matter of course. Though placement of -15- the accused in the society, may be of some relevance but that, by itself, cannot be a guiding factor in the matter of grant of bail and the same ought always to be coupled with other circumstances warranting the grant of bail. The provisions of sections 437 and 439 of Cr.P.C govern the grant of bail with the rider of Section 21(4)(b) of MCOCA. The Apex Court in Gurucharan Singh Gurucharan Singh Gurucharan Singh (supra) has noted that while exercising judicial discretion in granting bail, the Court should always bear in mind that the liberty of an individual is not unnecessarily and unduly abridged. However, while so doing, the Courts are also expected to see that cause of justice does not suffer. Section 21(4)(b) of MCOCA provides that notwithstanding anything contained in the Code, no person accused of an offence punishable under MCOCA shall, if in custody, be released on bail or on his own bond, unless (a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and (b) where the Public Prosecutor opposes the application, the Court is satisfied that "there are reasonable grounds for believing that he is not guilty of such offence and that he -16- is not likely to commit any offence while on bail". It is true, the Court, while considering an application for bail with reference to section 21(4)(b) of MCOCA, is not expected to record a finding of not guilty. However, the mandate of section 21(4)(b) is absolutely clear. In short, while considering the question of releasing the accused on bail under section 21(4)(b) the Court is called upon to see if there exist "reasonable grounds" for believing that the accused is not guilty and record its satisfaction to that effect in the order. This Court in the case of Lorance Lorance Lorance D’Souze D’Souze D’Souze (supra) while considering the provisions of section 37 of NDPS Act has noted that "the Court is called upon to see that if there are grounds for believing that the accused is not guilty and record its satisfaction about the existence of such grounds, i.e. not to say that the Court has to consider the matter as if it is pronouncing a judgment of acquittal recording a finding of not guilty." I am in total agreement with the view expressed by the learned Single Judge in the aforestated case. In the present case, therefore, -17- I am required to examine whether there exist reasonable grounds to believe that the applicant is not guilty of such offence and that he is not likely to commit any offence while on bail. 12. A proposition of law that stringent penal Acts have to be construed strictly and the provisions of MCOCA are a departure from the normal penal laws of the country and unless the acts committed by the accused squarely fall within the provisions of the stringent statutes, he should not be roped in by stretching the language of such enactment, needs no further support. The Apex Court in Niranjansingh Niranjansingh Niranjansingh and in Hitendra Thakur Hitendra Thakur Hitendra Thakur has laid down the aforestated proposition of law. However, that does not mean that merely because the activities of the accused can be checked and controlled under the ordinary law of the land, the provisions of MCOCA if they are otherwise attracted, he cannot be charged under the provisions of the said Act. The very objects of the statute would be frustrated if the provisions of MCOCA are not invoked in the case where they are attracted. Undoubtedly, MCOCA tends to be very -18- harsh and drastic containing stringent provisions and provides minimum punishment and in some other offences enhanced penalties also. Keeping these principles of law in view, the Courts should always consider carefully the material available on record and apply their mind to see whether the provisions of MCOCA are even, prima facie, attracted, and while so doing one has to be very careful while examining the evidence or material placed in support of the application of MCOCA. 13. Before proceeding further, it would be advantageous at this stage to make reference to the allegations against the applicant and his role, as reflected in the chargesheet and the written submissions filed on behalf of the CBI, in order to appreciate the submissions of the learned senior counsel for the parties. In so far as role of the applicant is concerned, according to the respondents, commission of his various acts and omissions have resulted in rendering help and support to Organised Crime Syndicate. The help or support was rendered through Mulani (co-accused) when the applicant was the Commissioner of Police, -19- Pune and through API -Dilip Kamat (co-accused) while he was the Commissioner of Police, Mumbai. I. The applicant knew the adverse antecedents of Mulani since 1996. The respondents have relied on the following circumstances and the sequence of events in support of their case against the applicant. (a) A complaint about corruption was received in respect of Mulani on 14.9.1996, who was then the Sr.Inspector of Police at Dongri Police Station, Mumbai. A copy of this complaint was also received by the applicant, who was then working as Jt.Commissioner of Police, Mumbai and bears his signature on it. The said complaint was forwarded by the applicant to Anti Corruption Bureau, Mumbai. (b) In the affidavit dated 29.10.2002 filed by the applicant in his capacity as Commissioner of Police, Pune before the Maharashtra State Administrative Tribunal (MAT) against Mulani he has categorically affirmed that conduct of Mulani was found to be highly suspicious in sensational murder case of one Faizulla Khan. (c) On 6.9.2002, the Investigation was handed over to DCP Jay Jadhav as by then the -20- provisions of MCOCA were invoked against two of the Accused in C.R. No.135/2002. New teams were formed for the investigation under MCOCA. While forming the team, the applicant included Mulani’s name in the investigation team in connection with the investigation of C.R. No.135/2002 (Page No.12694 of chargesheet) though he was specifically told by DCP Jay Jadhav not to include him in the team (statement of CDP Jay Jadhav Page 11941 of the Chargesheet). It was on the pretext that PI Deshmukh was too overburdened being in charge of Bund Garden police station and it was only Mulani who knew all the facts of the case. (d) The investigation revealed that Ashok Basak, Addl.Chief Secretary (Home), State of Maharashtra (for short, "Basak") had informed the applicant on 6.9.2002 about Mulani being in telephonic contact with Telgi, who was then lodged in Central Jail at Bangalore and his tainted role in fake stamp case. This information was passed on to Basak by Adhip Choudhari, Addl.Chief Secretary (Home), Government of Karnataka. The applicant had assured Ashok Basak that he would remove Mulani from investigation. Despite this, Mulani was not -21- neutralised by the applicant and he was allowed to continue in the investigation team. (e) There is no dispute that atleast on 6.9.2002 Basak had shared the said information with the applicant. (f) A complaint of corruption dated 15.7.2002 received from President, Pune Forum Citizen, against ACP Mulani, was received by the applicant on 31.8.2002. (g) Mulani was transferred to Jat, Dist-Sangli by the order of the Government dated 4.9.2002. This order was received in Pune on 6.9.2002. The order of transfer of Mulani was not served till he had obtained a stay against the transfer from the MAT on 6.9.2002 (Page 12843). (h) The Stay was for transfer to JAT Division and not for internal transfer. Yet, Mulani was not transferred from the investigation of C.R.No.135/2002, on the other hand, Mulani was sent to Bangalore on 18.9.2002 all alone without the I.O. (i) The Government of Maharashtra had constituted Special Task Force (STF) for enquiring into all the pending cases relating to counterfeit -22- stamps in the State of Maharashtra and the applicant was appointed as the Chairman to head the STF. Not a single meeting of this STF was convened by the applicant. (j) Mulani was allowed to be associated with the investigation till 30.9.2002 till 30.9.2002 till 30.9.2002 and he was transferred to Special Branch only on 30.9.2002 (Page No.12846). (k) On 10.10.2002 certain names were recommended for reward in connection with the investigation of C.R.No.135/2002. Although Mulani’s name was not listed initially, it was specifically added by the applicant in his own handwriting. (l) The applicant did not ensure the filing of a properly reasoned chargesheet in C.R. No.135/2002 P.S. Bund Garden and did not ensure the timely application of MCOCA to the whole case. Reference statement of the Director General of Police, Maharashtra Shri S.C.Malhotra. The filing of the chargesheet was hurried through by the applicant (Reference statement of Kishore Jadhav - Page 11947). II. On this background, on and from 1.1.2003 -23- the applicant was posted as