BA-1016-11.sxw 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1016 OF 2011 Rajesh Jaswantlal Solanki ... Applicant V/s. Padman Ramkrishnan Sunderan & Ors. ... Respondents Mr. Rizwan G. Merchant a/w. Mr. S.L. Wagh for the Applicant. Mr. Majeed Memon a/w. Mr. Parvez Memon for Respondent No.1. Mrs. S.D. Shinde, APP, for Respondent No.3. CORAM:- A.M. THIPSAY, J. DATED :- 12 TH JULY, 2011. P.C. : 1. Heard. 2. The Applicant is the original complainant in MECR No.13 of 2006. The Respondent No.1 is the Accused No.7 in the said case. The allegation against the Respondent No.1 and the other accused in the said case is in respect of the offences punishable under Section 21 of the NDPS Act, read with Section 8(c) thereof, and Section 25 of the Arms Act, read with Section 3 thereof. 3. The Respondent No.1 was released on bail by the Special Court, by its order dated 1st July, 2011. The Applicant, feeling aggrieved by the said order of releasing the Respondent No.1 on bail, has approached this Court for cancellation of the bail granted to him. 4. Briefly stated, the case of the Applicant against the accused persons, as can be seen from the F.I.R., is as follows : BA-1016-11.sxw 2 Dixit . That the Applicant, who is a businessman, had some monetary dealings with the Accused No.1-Ravindranath Shelatkar in the year 1999. Ravindranath Shelatkar owed some money - a huge amount - to the Applicant, but was avoiding to repay the same inspite of repeated demands. Shelatkar stopped attending his office and, for about two years, inspite of searching for him, and making enquiries at various places, the Applicant could not know his whereabouts. That in the year 2004, the Applicant, accidentally, met Shelatkar in the office of the Municipal Corporation at C.S.T., and when the Applicant asked him about the money, Shelatkar stated that he would sell a plot to a Builder and arrange to repay the money to the Applicant. Shelatkar then introduced his friend Padman Sunderan - the Respondent No.1 herein - to the Applicant. Shelatkar stated that he was carrying out his profession from the office of the Respondent No.1 and gave the address of the said office to the Applicant. Thereafter, the Applicant used to go to Shelatkar for the money and contact him in the office of the Respondent No.1 only. On one occasion, when the Applicant had gone to the office of the Respondent No.1 for meeting Shelatkar, the Respondent No.1, on his own, stated to the Applicant that his money would be given back jointly by the said Shelatkar and the Respondent No.1. . On 17th October, 2004, when the Applicant went to the office of the Respondent No.1, the Respondent No.1 told him that Shelatkar had gone to Delhi, and that he would be returning on 19th October, 2004. On 19th October, 2004, Shelatkar contacted the Applicant telephonically and stated that he would reach Mumbai by 5:00 p.m., and that the Applicant should come to the office of the Respondent No.1 at 6:00 p.m. for collecting the cheque of the amount payable to him. About half an hour thereafter, the Respondent No.1, by telephoning the Applicant, confirmed the appointment. When the Applicant went to the office of the Respondent No.1, Shelatkar was not there. The Respondent No.1 told the Applicant that Shelatkar had not returned. After some time, Shelatkar called on the telephone in the office of the Respondent No.1 and spoke to the Respondent No.1. The Respondent No.1 made the Applicant also speak to Shelatkar during the said call. The Applicant was told to come on the next day in the morning. When the Applicant left the BA-1016-11.sxw 3 Dixit office of the Respondent No.1 and was about to open the dickey of his motor cycle, he was caught by two persons and one of them took out a leather pouch from his pant's pocket and placed the same on the seat of the motor cycle of the Applicant. Two other persons came there and handcuff the Applicant. They started questioning the Applicant about the pouch in which a revolver containing live cartridges and some substance alleged to be brown sugar was found. The name of the person, who had placed the pouch on the motor cycle of the Applicant, was later on revealed to the Applicant as Police Sub-Inspector Rajendra Bhosale (a co-accused in this case) and the other persons were also revealed to be Policemen. A false case for the offences punishable under the provisions of NDPS Act and Arms Act was registered against the Applicant by the said PSI Rajendra Bhosale and other Police Officers. False and bogus Panchanama was got prepared. Before that, the said Bhosale and other Policemen had been threatening the Applicant and had questioned him as to why he had gone to Shelatkar for demanding the money. 5. It is not necessary to mention the further details here, but, ultimately, the case registered against the Applicant by the said PSI Rajendra Bhosale and others was found to be false. The Applicant was discharged from the said case and was set at liberty after having undergone detention in custody for about 150 days. In the course of investigation of the case against the Applicant, it was revealed that a false case had been filed by the said PSI Rajendra Bhosale and other Policemen, allegedly, on the instructions of Shelatkar and the Respondent No.1 herein. 6. The Applicant, thereafter, made a complaint to the Special Court under the NDPS Act against the said PSI Rajendra Bhosale, other Policemen, the said Shelatkar and the Respondent No.1 for falsely implicating him in a criminal case. He levelled accusation in respect of several offences, which required a complaint by the Court or other specified authorities for taking cognizance of the said offences. However, as regards the complaint in respect of the offences punishable under the NDPS Act and the Arms Act, the complaint was directed to be filed before a Magistrate. The learned Magistrate ordered investigation into the matter, as contemplated under Section 156(3) of the Code of Criminal Procedure, BA-1016-11.sxw 4 Dixit pursuant to which, the aforesaid MECR No.13 of 2006 was registered and the persons mentioned as accused therein including the Respondent No.1 came to be arrested. 7. The Respondent No.1 was arrested on 18th June, 2011. He was released on bail, as aforesaid, on 1st July, 2011. 8. Prima facie, the said Shelatkar and the Policemen–Bhosale had hatched a conspiracy to get the Applicant falsely arrested on serious charges, i.e. of offences punishable under the NDPS Act and Arms Act, and that this was done to avoid returning the amounts, which were payable to him, is clear. The behaviour of the said Shelatkar and, more particularly, of the Policemen, who are accused in the case, is shocking. 9. The learned Judge of the Special Court released the Respondent No.1 on bail holding the case against him to be 'weak'. The only question is whether the bail order passed by the learned Judge of the Special Court is perverse, or contrary to law, so as to warrant cancellation of the bail granted by him. 10. With the assistance of the learned Counsel for the parties, I have glanced through the entire Charge-Sheet. I have also gone through the order passed by the learned Judge of the Special Court. 11. There is substance in the contention of Mr. Merchant, the learned Advocate for the Applicant, that certain observations made in the order passed by the learned Judge are not warranted. In particular, the observations made by the learned Judge suggesting as if there is no satisfactory material at all against the present Applicant and terming the case against him as 'weak', are not very proper. 12. Undoubtedly, it does appear that the Respondent No.1 is doing business together with the Accused No.1-Shelatkar and their financial interest in several respects appears to BA-1016-11.sxw 5 Dixit be common. There is, undoubtedly, strong and reasonable suspicion against the Respondent No.1 that he was also a party to the conspiracy to get the Applicant involved in a false case. 13. However, it is also a fact that, except the suspicion, nothing further could be found against the Respondent No.1 during the course of investigation. Undoubtedly, the case of Shelatkar and the case of the Respondent No.1 cannot be treated on par. It cannot be overlooked that the amount, which was to be paid to the Respondent No.1, was to be paid by Shelatkar and not by the Applicant. (Though according to the Applicant, the Respondent No.1 himself had told the Applicant that the amount would be repaid by Shelatkar and by him, jointly). 14. The investigation, that has been carried out, shows the involvement of PSI Rajendra Bhosale-Accused No.2. In the course of investigation, material showing that the Respondent No.1 had any contacts, or connection with the said Rajendra Bhosale, or any of the Police Officers (whose help was taken to falsely involve and implicate the Applicant) could not be collected. 15. Mr. Merchant, the learned Advocate for the Applicant, while terming the order passed by the Special Court as perverse, pointed out that the learned Judge, has, at one place, observed that the Respondent No.1 was entitled to be released on bail ‘on the ground of parity’, as Shelatkar had also been released on bail. Now, admittedly, Shelatkar had been released on bail because the investigation remained incomplete, even after Shelatkar had been detained in custody for a period of 90 days. I am in agreement with Mr. Merchant that there would be no question of bringing the concept of parity between the accused, who was released on bail, being statutorily entitled to be so released and the accused, who could be released on bail, only on consideration of the merits of the matter. 16. As observed earlier, however, a distinction needs to be drawn between the case of the Shelatkar and that of the present Respondent No.1. The circumstances that are held against him, undoubtedly, create suspicion against him, but that suspicion is not carried any BA-1016-11.sxw 6 Dixit further in the course of investigation and the matter remains, as it was at the time of lodging of the complaint. To what extent he was a party to the conspiracy to involve the Applicant in a false case of serious offences, is not free from reasonable doubt. 17. Mr. Merchant, the learned Advocate for the Applicant, submitted that the impugned order has been passed without taking into consideration the requirements of Section 37 of the NDPS Act. According to him, the Respondent No.1 could not have been released on bail, unless a finding would be given that 'there were reasonable grounds for believing that the Respondent No.1 was not guilty of an offence punishable under the NDPS Act'. How the phrase “reasonable grounds for believing” is to be interpreted has been discussed in several authoritative judicial announcements and one may not elaborately go into that aspect for the purpose of the present Application. It is sufficient to observe that the phrase 'reasonable grounds' conveys a different meaning from 'sufficient grounds'. Under the provisions of Section 227 of the Code of Criminal Procedure, an accused would be discharged, if the Judge considers that there is no sufficient ground for proceeding against such accused. In other words, an accused can be tried and made to face the trial, only if there are sufficient grounds for proceeding against him. A person released on bail under the NDPS Act would be required to face the trial. Even where bail is granted by holding that ‘there are reasonable grounds for believing the accused to be not guilty’ of an offence under the NDPS Act, it would be still possible to frame charge against such accused. This indicates that, even where ‘there are reasonable grounds for believing accused to be not guilty’, there would still be ‘grounds for presuming that the accused has committed an offence’, which is the requirement of Section 228 of the Code. Thus, the phrase “reasonable grounds for believing that the accused is not guilty", is required to be reasonably construed by taking this aspect into consideration. It cannot be contended, therefore, that it is only when the Court considers the accusation to be false or unjustified, that bail can be granted in respect of an offence punishable under the NDPS Act. Such interpretation would mean that no person released on bail in respect of an offence punishable under the NDPS Act can ever be proceeded against. The scheme of the relevant BA-1016-11.sxw 7 Dixit provisions clearly indicates that ‘existence of reasonable grounds for believing an accused to be not guilty’ and ‘ground for presuming that the accused has committed the offence’ are not mutually exclusive and can co-exist in a given case. 18. In any case, the learned Judge of the Special Court has termed the case against the Respondent No.1 to be ‘weak’. In my opinion, this would certainly show the satisfaction of the learned Judge about the existence of ‘reasonable grounds for believing the Respondent No.1 to be not guilty’. I am not impressed by the contention advanced by Mr. Merchant that the Court must necessarily use the same phrase – i.e. ‘reasonable grounds for believing the accused to be not guilty’, before directing his release. In fact, the expression ‘weak’ used by the learned Judge is stronger than mere existence of ‘reasonable grounds for believing an accused to be not guilty’. 19. Moreover, the grant of bail is one thing and cancellation is another. Some of the relevant considerations for cancelling bail would be whether the order suffers from any patent illegality, or whether it is perverse, or whether any events subsequent to the release of accused on bail justify the cancellation of bail on the ground that the accused has abused the liberty granted to him, etc. In the instant case, the accused has not, actually, been released on bail. In fact, during the pendency of the present Application, also the operation of the bail order was ordered to be stayed. 20. The Investigating Officer, who is present in Court, submits that he does not require the detention of the Respondent No.1 in custody for the purpose of investigation. 21. On taking an overall view of the matter, I do not think that the bail granted to the Respondent No.1 is liable to be cancelled. Though the entire observations made by the learned Judge of the Special Court cannot be said to be correct and though some of the observations are positively incorrect, the distinction drawn between the case of the said Shelatkar and the present Respondent No.1 is reasonable and proper. Some doubt about the BA-1016-11.sxw 8 Dixit extent of involvement of the present Respondent No.1, particularly with reference to the abatement of offences punishable under the NDPS Act and the Arms Act, indeed, arises. The order releasing him on bail does not suffer from any patent illegality. Moreover, in the interest of investigation, certain conditions can be imposed upon the Respondent No.1 in modification or in addition of the conditions imposed by the learned Judge of the Special Court. 22. The Application for cancellation of bail is rejected. 23. Interim stay stands vacated. 24. However, it is directed that the Respondent No.1 shall attend the office of the DCB, CID, Unit-1 everyday, between 11:00 a.m. to 3:00 p.m., for a period of one month from the date of his release and, thereafter, once on every Monday, until further orders of the learned Judge of the Special Court. 25. At this stage, Mr. Memon, the learned Advocate for Respondent No.1, prays that the Respondent No.1 be allowed to deposit cash of Rs.1,00,000/- in lieu of surety, at-least for a temporary period of four weeks. Needless to say, that such prayer can be made before the learned Judge of the Special Court, who may consider the same on merits. [A.M. THIPSAY, J.]