:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5350 OF 2005 Shridhar Sumant Vagal ...Applicant. V/s 1. The State of Maharashtra and anr. ...Respondents. ---- Mr. Shekhar Naphade with Mr. Ashwin Naik, Bharat Dhoria, Curush Bilimoria with Ms. Deepa Bajaj for the applicant Ms. Rajeshree M. Gadhvi, APP for the State. Mr. Raja Thakore with Mr. S. Chinchalkar for the respondent No.2 - CBI CORAM: CORAM: CORAM: V.M. KANADE, J. V.M. KANADE, J. V.M. KANADE, J. DATE: DATE: DATE: 21st July, 2006 21st July, 2006 21st July, 2006 P.C.: 1. This is an application for bail which is filed by the applicant who is an original accused No. 59 in Special Case No. 2 of 2004 which is pending in the Court of the learned Special Judge at Pune, appointed under the provisions of the Maharashtra Control of Organized Crimes Act, 1999 (hereinafter referred to as "MCOCA, 1999"). This case relates to C.R. No. 135 of 2002 of the Bund Garden Police Station, Pune and is known as Telgi case. The applicant was arrested on 7/11/2003 under sections 120B, 216, 218, 221 of the Indian Penal Code read with sections 3(2) , 3(5), 24 :2: of MCOCA read with sections 7 and 13(1)(d) of the Prevention of Corruption Act. The applicant was produced before the learned Judicial Magistrate, First Class on 8/11/2003 and, thereafter, he was remanded to police custody from time to time and, finally, he was taken in judicial custody. He was lodged in Yerwada Central Jail, Pune and was released on medical bail for some time on 30/8/2004. The applicant was taken into custody and was ordered to be kept in Arthur Road Prison. Thereafter, on account of his deteriorating health, the applicant was sent to Nanavati Hospital. Charge-sheet in the said case had been filed and was served on the applicant on 2/2/2004. 2. I have heard the learned Counsel appearing on behalf of the applicant and the learned Counsel appearing on behalf of the respondents at length. SUBMISSIONS: SUBMISSIONS: SUBMISSIONS: 3. The learned Senior Counsel appearing on behalf of the applicant has submitted, firstly, that as far as the allegation of conspiracy is concerned, it is without any foundation on facts and evidence. He submitted that the other Police Officers against whom similar charges were levelled are (i) Mr. R.S. :3: Sharma, the then Police Commissioner, (ii) Pradip Sawant, Deputy Commissioner of Police, (iii) Dattatray Dal, the Senior Inspector and (iv) API Dilip Kamat. He submitted that Mr. Sharma, Mr. Kamat and Mr. Dal have been released on bail. He submitted that the case against the applicant and the case against Mr. Sharma, Mr. Sawant and Mr. Dal in respect of the allegation of conspiracy is almost identical. The learned Senior Counsel Mr. Naphde relied upon the Judgment of the Supreme Court in the case of Ranjitsing Brahmajeetsing Sharma Vs State of Maharashtra & Anr. reported in 2005 ALL MR (Cri) 1538 2005 ALL MR (Cri) 1538 2005 ALL MR (Cri) 1538 (S.C.) (S.C.) (S.C.) The learned Senior Counsel submitted that in the absence of any proof, the activities of the Assistant Police Inspector Mr. Kamat could not even remotely be said to have been done with the knowledge or tacit consent of the applicant. The second submission of the learned Senior Counsel appearing on behalf of the applicant was regarding the sloppy investigation. It is submitted by the learned Senior Counsel that the applicant had taken all steps for the purpose of investigating the said offence. He submitted that after the information was received on 8/6/2002, the applicant had deputed Police Personnel to check the addresses furnished by the Pune Police and this was borne out by the entries in Station Diary :4: of Central Intelligence Unit (CIU) of Crime Branch. It is submitted that the Investigating Officer did not examine their Police Personnel attached to Office of the applicant to find out whether the accused acted on information received on 8/6/2002 from Pune Police. He invited my attention to the report of API Palande which clearly indicated that the staff of CIU headed by Sr. P.I. Dhoble left their Office at 18.45 Hrs. to check their addresses. He submitted that the report also mentions that API Khaire personally visited Bund Garden Police Station, Pune and collected the required information. However, the statement of API Khaire was not recorded. The report also indicated that the addresses which were given by the Pune Police to the applicant and the addresses from where the Pune Police seized the bogus stamps were different. It is further submitted that the report of Unit-III was suppressed by the Investigating Officer. It is then thirdly submitted by the learned Senior Counsel that so far as allegation of fabrication of letter dated 10/6/2002 is concerned, there is no evidence to show that the letter dated 10/6/2002 is antedated. It was submitted that the I.O. did not produce the outward register maintained in the office of the applicant. In the absence of outward register being produced, it was not possible to say that the :5: letter was antedated by the applicant. It was submitted that in order to substantiate the said allegation it was necessary for the I.O. to examine the recipient of the said letter i.e. Senior Inspectors of Police of Unit I and II of CIU. However, it was submitted that the statement of these officers were not recorded. The learned Senior Counsel further submitted that in respect of the allegation regarding no amount being taken by the applicant, he submitted that the Investigating Officer had not indicated as to what steps were required to be taken by the applicant and there was no specific evidence against the applicant. It was submitted that the applicant issued circular dated 19/7/2002, directing the Senior Police Inspector in-charge of the Police Station to keep close watch on the shop in the vicinity of the courts and find out whether fake stamps are being sold. He submitted that this destroys the story of the prosecution that the applicant had not taken any steps. He further submitted that the applicant’s endorsement on the wireless message received on 1/7/2002 from Additional Commissioner of Police, Pune shows that the applicant had acted promptly. The learned Senior Counsel further submitted that the allegation that the applicant transferred Christopher murder case to Crime :6: Branch Unit-V pursuant to and as part of conspiracy, is unfounded. He submitted that the case was rightly transferred to the Crime Branch under Standing Order No. 140 and for that purpose approval of the Police Commissioner was not necessary. The learned Senior Counsel further submitted that so far as activities of Kamat are concerned, there is no evidence to show that the applicant had knowledge about the same. It was submitted that there is no evidence to show that the applicant knew about Kamat’s visit to Telgi in Bangalore Jail. It was submitted that the statement of Dhingra does not implicate the applicant in any way. It was further submitted that there is no evidence to show that the applicant knew that in Hyderabad seizure counterfeit Government stamp/papers worth about Rs 13 crores were seized and that Kamat prepared a false panchanama. He further submitted that the allegation that various comforts were provided to the accused Telgi in Crime Branch Unit-V is baseless and that no one had brought to the notice of the applicant that Telgi was given all these facilities to make it possible for Telgi to dispose of his properties or carry on his unlawful activities. The learned Counsel invited my attention to the statements of various witnesses which were recorded in support of the allegation which was made against the :7: applicant to show that even if the said evidence is accepted there was no way that the applicant would be convicted for having committed the alleged offence. 4. The learned Counsel appearing on behalf of CBI vehemently opposed the application for bail. He submitted that AKL Telgi - accused No.23 was carrying on his illegal activities relating to counterfeit Government stamps and stamp papers prior to the year 1994 and, initially, he had started purchasing gum-washed stamps from two other accused from Kolkatta and, thereafter, he decided to prepare counterfeit Government stamps and stamp papers instead of procuring them from Ramratan Soni and the first case against AKL Telgi was registered vide C.R. No. 91/93 of GBCBCID, Mumbai and till the registration of the present case at Bund Garden Police Station, as many as 11 cases were pending against him and against the members of his organized crime syndicate who were continuously carrying out unlawful activities under his directions. The learned Counsel invited my attention to the chronology of events which had taken place on the date of registration of C.R. No. 135/2002 at Bund Garden Police Station, Pune from 7/6/20002 till the arrest of the present applicant on 7/11/2003 by SIT, Pune. He submitted that the :8: applicant was a Joint Commissioner of Police (Crimes), Mumbai between the period from 21/3/2002 to 17/3/2003 during which time he was in a position of being aware about the continuing unlawful activities of the organized crime syndicate of AKL Telgi. He submitted that the applicant, as a co-conspirator with D.P. Kamat and others, assisted AKL Telgi in continuing his unlawful activities and this was done to obtain pecuniary gains from the funds of the organized crime syndicate of AKL Telgi. The learned Counsel submitted that with this objective, some cases were transferred for investigation to Dharavi Unit-V. He submitted that this could have been justified if all the 48 cases which were against him were transferred to the said Unit. However, the applicant transferred only few selected cases. The learned Counsel submitted that the custody of Telgi was with Mumbai Police from 28/10/2002 till 24/1/2003 during which time he was in custody of Dharavi Unit-V. However, thereafter, abruptly, his custody was surrendered to the Karnataka Government on 21/1/2003 without bothering to inquire with the local Police Station or other Police Stations in Maharashtra whether they require his custody. It was submitted that AKL Telgi remained in custody and control of D.P. Kamat which was evident from the station diary entries of Dharavi Unit-V. The learned :9: Counsel invited my attention to the various documents and other circumstances and statements of witnesses to indicate the role played by the applicant in this massive scam. He submitted that there was enough evidence to indicate that the applicant had received pecuniary gains from AKL Telgi which was evident from the statement of Dhingra. He also submitted that the statements of Brijbhan Singh, Chandwani and Kiran Thakker indicated that Telgi was allowed to carry out his unlawful activities and was permitted to make efforts to dispose of the properties acquired from the funds. It was submitted that API Kamat was virtually a member of the organized crime syndicate and was acting as front man for the applicant and, therefore, there was sufficient evidence to convict the applicant for the aforesaid offences. He submitted that therefore this was not a fit case for grant of bail. FINDINGS FINDINGS FINDINGS AND CONCLUSIONS: AND CONCLUSIONS: AND CONCLUSIONS: 5. I have given my anxious consideration to the submissions made by the learned Senior Counsel appearing on behalf of the applicant and the learned Counsel appearing on behalf of the CBI. 6. After having gone through the entire statements of :10: relevant witnesses on which reliance has been placed by the learned Counsel appearing on behalf of the applicant and respondent and after having examined the legal position, I am of the view that no case is made out for grant of bail for the following reasons. 7. Section 21(4) of the MCOCA, 1999 reads as under:- 21(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act 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 Prossecutor 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 is not likely to commit any offence while on bail." A perusal of the said provision indicates that only :11: after the Court is satisfied that the applicant is not likely to be convicted for an offence punishable under MCOCA, 1999, he can be released on bail. 8. The Supreme Court in the case of Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra & Anr. reported in 2005 ALL MR (Cri) 1538 (S.C.) 2005 ALL MR (Cri) 1538 (S.C.) 2005 ALL MR (Cri) 1538 (S.C.) has observed that ultimately the Court would decide on the facts of each case whether there is any material to indicate the involvement of the applicant and whether the nexus has been established by the prosecution between the applicant and the organized crime syndicate. In the present case, the learned Senior Counsel appearing on behalf of the applicant has argued the matter at length and has practically taken me through the entire charge-sheet for the purpose of showing that no case is made out against the applicant. The learned Senior Counsel has laboriously taken me through all the allegations which are made against the present applicant and has taken pains to show that none of the allegations has been proved against the applicant. 9. In this context, it will be essential to note that the principal allegation against the applicant is that he abetted and aided the members of the organized :12: crime syndicate, who was subordinate in the police force and that he had knowledge about the activities of AKL Telgi. It was only because of assistance which was given by the applicant and other Police Officers, the said Telgi could operate for considerably long period of time and, as a result, was successful in disrupting the entire State machinery in respect of production and sale of stamps etc. The loss to the State Exchequer has been roughly estimated in Rs 100 crores and that this net of selling the counterfeit stamps was spread all over the country. It is alleged that the applicant, apart from having received the pecuniary advantage, was actively assisting the said operation. Essentially, a gist of the submissions which are made by the learned Senior Counsel appearing on behalf of the applicant is that there is no evidence against the applicant to establish conspiracy or abetment. It is the case of the applicant that CBI has merely tried to draw inferences on the basis of conjecture and surmises without there being any evidence on record and that such an exercise even if it is undertaken would not conclusive prove the allegations against the applicant and that in such a case, at the highest, if there is some lapse on the part of the Investigating Officer or his Superior, disciplinary action could be taken against him but he :13: cannot be charged for having committed an offence under the MCOCA. 10. The learned Counsel appearing on behalf of the CBI, on the contrary, on the basis of chronology of events and the various statements of witnesses and the documents on record, submitted that there was sufficient material to show the applicant’s involvement and complicity in the said crime. 11. So far as the first submission of the learned Counsel appearing on behalf of the applicant that there are reasonable grounds to believe that the applicant has not committed any offence under the MCOCA and, therefore, all the conditions under section 21 of the MCOCA are complied with, cannot be accepted. The reasons why I feel that reasonable grounds exists for believing that the applicant is guilty of such offence shall be considered at the appropriate place later on. 12. Before I consider the rival submissions on :14: merits, it would be appropriate first to consider the provisions of Section 21(4) of the MCOC Act which deals with the question of granting bail to a person accused of an offence under the said Act. Perusal of the said provision discloses that before granting bail, the court has to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the said offence. Perusal of the said provision, therefore, clearly discloses that the court has to be satisfied that there are reasonable grounds to believe that applicant has not committed the offence. 13. The Apex Court has considered the provisions of Section 21(4) of the MCOC Act in the case of Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra & Anr. reported in 2005 ALL MR(Cri) 1538(S.C.). In para 46 of the said judgment, the Supreme Court has observed that presumption of innocence is a human right and Section 21(4) must be interpreted in the light of the aforesaid principle. The Apex Court in para 47 has framed the following questions for the purpose of granting bail:- (a) Before granting bail, is it necessary for the court to record a finding, albeit, prima :15: facie when the accused is not guilty of offence under MCOC Act? (b) Would there be any machinery available to the Court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever? In para 48, the Supreme Court has observed that the findings on the questions formulated as above are to be given on objective consideration on the basis of record only for the purpose of bail and for no other purpose. The Supreme Court further in para 49 of the said Judgment has held that restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the material brought on record, is satisfied that in all probability the applicant may not be convicted then, in such a case, bail may be granted. Further in para 55, it has observed that Section 21(4) does not lead to the conclusion that the Court must arrive at a positive finding that the applicant has not committed the offence under the Act. It has further observed that Section 21(4) must be construed reasonably and the Court should maintain a delicate balance between a judgment of acquittal and conviction and an order :16: granting bail. 14. In para 57 of the said judgment, The Supreme Court has held that at the stage of bail, the Court has to arrive at a finding on the basis of broad probabilities and for this purpose the Court may have to probe into the matter deeper to arrive at a finding that the material on record may not justify a judgment of conviction and that such a finding while granting or refusing bail would be tentative in nature and the Trial Court would be free to decide the case on the evidence before it without in any manner being prejudiced by the earlier finding. 15. Keeping in view the aforesaid observations which are made by the Supreme Court, I shall proceed to examine the rival contentions on the merits of the case. 16. It is alleged by the prosecution that the applicant was a Joint Commissioner of Police (Crime Branch), Mumbai and was fully aware about the continuing unlawful activities of the Organised Crime Syndicate of AKL Telgi and he was a co-conspirator alongwith D. P. Kamath and others in abetting the continuing unlawful activities of AKL Telgi and his :17: Associates for the purpose of abetting the unlawful activities of the Organised Crime Syndicate. The scam, as the said case popularly known, involved huge amount of money running in hundreds and thousands crores and the extent of the loss to the State Exchequer is still not yet fully ascertained. In all 48 cases have been filed against AKL Telgi. 17. Since Section 21(4) casts a duty on the Court to satisfy itself that the material on record is not sufficient to convict the accused, it was necessary to examine the allegations, which were made against the applicant in the chargesheet and the statements of the witnesses and the documents on record, are also required to be examined. The learned counsel for the applicant and the learned counsel for the CBI have, therefore, taken me through the allegations against the applicant in the chargesheet and the other relevant material and, as a consequence, the applicant had to be heard at length. 18. I have given my serious consideration to the submissions which are made by the respective counsel. I am satisfied that the applicant has not succeeded in showing that there are reasonable grounds to believe that the applicant has not committed an offence and it :18: is not possible to record a finding that, prima facie, applicant is not guilty of the offence under the MCOC Act for the reasons which are stated herein below. 19. In order to appreciate the submissions which are made by the learned Counsel for the applicant, it is necessary to briefly summarise the allegations made against the applicant in the charge-sheet, which are as under:- (I) In December 1993 Abdul Karim Ladsab Telgi (A-23) hereinafter referred to as "Telgi" was arrested by Mumbai Police in C.R. No. 91/93 and while he was in police custody he came in contact with one Ram Ratan Soni who was involved in sale of counterfeit Government stamp papers / stamps. At the instance of said Soni, Telgi obtained government stamp vending licence on 18-3-1994 to vend at 29 Police Court Lane, Fine Mansion, Fort, Mumbai - 400 001. This is the starting point of Telgi Scam relating to counterfeit Government Stamp & Stamp papers. In course of time Telgi built up huge economic empire. In the process Telgi engaged services of printers, computer :19: operators, transporters, police officials and public servants as members of organized crime syndicate. (II) It is further alleged that some public servants have dishonestly and intentionally prepared false records with the intention to save the members of Organized Crime Syndicate (OCS) and that such public servants being legally bound to apprehend persons involved in the scam intentionally failed to apprehend such persons and that they rendered help/support in commission of Organised Crime (OC) and that they abstained from taking lawful measures, under the MCOC Act knowingly fully well that they will thereby cause loss to the nation and that they prevented forfeiture of property of members of O.C.S. It is further alleged that these public servants have committed criminal misconduct and that they have obtained for themselves valuable things of pecuniary advantage by corrupt or illegal means. (III) It is alleged that Telgi hatched series of conspiracies with the other co-accused and :20: members of his OCS to further the larger conspiracy of promoting continuing of unlawful activities of his OCS Dilip Pandurang kamat(A-44) who was attached to Crime Branch Unit V, Dharavi Mumbai was an active member of the Organised Crime Syndicate and as a member of OCS he was a co-conspirator with the following Police Officers (1) Dattatray Yeshwant Dal (A-50) who was during the material period Senior Inspector incharge of Crime Branch Unit V, (2) the Applicant herein (A-59), (3) Ranjit Singh Sharma (A-60) who was then Commissioner of Police, Mumbai and (4) Pradip Bhalchandra Sawant (A-65) who was Deputy Commissioner of Police(Crime Detection). The Common object of this Criminal Conspiracy was to render help and support to Telgi to carry on continuing unlawful activities. It is further alleged that Telgi was provided various facilities for the purpose of disposing of his properties which he had acquired from illegal gains made in dealing with counterfeit, Government stamps and stamp papers. It is further alleged that these properties were liable to be attached under Section 20 of the MCOC Act. It was also :21: to ensure that Telgi and other members of Organised Crime Syndicate would be saved from legal punishment by concocting and fabricating