1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1795 OF 2006 Manoj Ramesh Mehta .. Applicant Versus State of Maharashtra .. Respondent Mr.A.P.Mundargi, Senior Advocate with Mr.A.J.Shekhar & Co. for applicant Mr.P.A.Pol, A.P.P. for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 23rd January 2007. ORAL JUDGEMENT:- . Applicant is arrested by Bund Garden Police Station in connection with C.R.No.135 of 2002 for offences punishable under section 120(B), 255, 34, 109 of IPC read with 3(1)(ii), 3(2), 3(4), 3(5) and 4 of Maharashtra Control of Organised Crimes Act (MCOCA for short). The applicant is arrested on 11th June 2003. He applied before the Special Judge for bail. 2 Needless to state that investigation in the said C.R. culminated in Special Case No.2 of 2003 before the Special Judge, Maharashtra Control of Organised Crime Act, 1999 (MCOCA), Pune. The applicant’s (Accused No.42) application for bail was numbered as Exh.1215 and placed before the Special Judge. After hearing submissions on behalf of applicant’s Advocate so also that of the prosecution, by his order dated 10th January 2006 he dismissed the same. 2. This is how the present application is filed. 3. Mr.Mundargi, learned Senior Counsel appearing in support of this application has contended that taking all allegations against the applicant as true, the role of the applicant in the crime is subsidiary and peripheral in nature. He has not been accused of dealing with fake stamps at all. There is no accusation of the 3 applicant being involved in printing, manufacturing or disposing of the same. Therefore, Section 3(2) of MCOCA is not attracted. Mr.Mundargi has taken me through para 26 of the charge sheet and contended that the applicant and the prime accused Telgi came in contact with each other in connection with their activities of import and export of spices and pulses. One company by name Metro Corporation was set up by prime accused Telgi, which was involved in import and export of pulses through State Trading Corporation. The applicant has helped and assisted in booking the consignments which are to be routed through S.T.C. There is no role played by him in the fake stamp scam. In any event, at the most he could be said to be a facilitator. In such circumstances, applicant deserves to be enlarged on bail. 4. Mr.Mundargi has then emphasised the fact that a stringent enactment like MCOCA has no 4 provision for periodical review of cases filed thereunder. In other words, his submission is that there is no provision whereby a special case filed under the MCOCA could be reviewed periodically and qua each accused. 5. He submits that the special case is pending since 2003. There are about 800 witnesses who are going to be examined by the prosecution. Applicant is in custody from 11th June 2003 till date. Thus, even if ultimately he is convicted and sentenced for his alleged role in the crime that would not attract an extreme punishment. Hence, it is quite likely that he may be sentenced for the period which he is presently undergone in custody. In such circumstances and when there is no likelihood of the trial commencing in near future, applicant deserves to be enlarged on bail. 6. Mr.Mundargi has emphasised the mandate of 5 Article 21 and contended that presumption of innocence is human right. It is part of the mandate of Article 21 of Constitution. Nobody can be detained at this stage as if he is convicted. The difference between a person accused of a crime and being convicted thereof has to be maintained. That distinction is the very basis of the applicant being enlarged on bail. In these circumstances and considering that several accused in the special case are enlarged on bail by the Supreme Court, this is a fit case where the applicant be enlarged on bail with such conditions as this Court deems fit and proper. 7. On the other hand Mr.Thakare appearing for C.B.I. submits that it is false to contend that the present applicant has not committed any offence punishable under the MCOCA or is not prima facie guilty of commission thereof. In other words his submission is that the applicant 6 is guilty of offences alleged against him. He submits that the prime accused Telgi (Accused No.23) had established a complete machinery whereunder Fake revenue stamps were manufactured, printed, circulated and distributed. The enormity of the crime is such that during the course of the dealings and transactions, the prime accused was assisted by the other accused including public servants. He submits that the present applicant has a long standing association with Telgi. 8. Mr.Thakare disputes the contention that the present applicant had come in contact with Prime Accused only during the course of the so called business dealings. He submits that there were no independent business dealings much less as projected by Mr.Mundargi. He submits that the charge sheet would reveal that prime accused set up certain companies and firms and under the garb of some transactions what was being done was to 7 transfer monies from several bank accounts to the prime accused. The present case is where the applicant had made some sort of deal for Import of pulses. However, on the own showing of the prime accused and the applicant, said deal was cancelled. The State Trading Corporation was informed accordingly. S.T.C., therefore, did not pursue the import of spices/pulses and other goods. Once the money was parked with the applicant - accused such deals were cancelled. There is prima facie strong evidence to show that the applicant is a member of a crime syndicate of the prime accused. He has actively participated in their activities which were per se unlawful. Therefore, he has been charged with commission of offences punishable under penal laws mentioned above. 9. He submits that MCOCA is clearly attracted in this case. Mr.Thakare has taken me through the charge sheet, portions of which have 8 been compiled for perusal of this Court. He submits that the intent and knowledge of the activities is clearly there. The telephone conversation which has been relied upon must be seen in that context. Mr.Thakare has invited my attention to portions of the charge sheet where there is reference to Anil Gote and Tabrej Telgi. He submits that prima facie involvement, therefore, is admitted. Mr.Thakare has laid great emphasis on the fact that the applicant was involved in meeting public servants on behalf of prime accused and handing over monies as and by way of bribes in return of favours. In all acts of the prime accused, the applicant was major link. Present applicant at the instance of prime accused, resided at Pune. He checked in Hotel Pride International. It is at this place where a sum of Rs.5 lakhs was handed in to one of the persons named in the charge sheet. That is nothing but part of continuing unlawful activity of the organised crime syndicate. If the 9 applicant is innocent or has absolutely no knowledge of the activities of Telgi pertaining to fake stamp papers then, there is no occasion for him to have offered his services for payment of some bribes. The investigations would indicate that the prime accused was posted with several developments by this applicant. Therefore, the incident referred to in the charge sheet ought not to be taken in isolation at this prima facie stage. There is a chain which would complete the link and point a finger to the applicant as well. In such circumstances, according to Mr.Thakare, Section 21(4)(B) is attracted and the P.P. is strongly opposing the bail. There are reasonable grounds for believing that the applicant is guilty of offences punishable under this Act. 10. Mr.Thakare submits that the materials need not be scanned and scrutinised in great details. The evidentiary value of the same also 10 cannot be gone into. In such circumstances, there are strong grounds for the aforesaid reasonable belief. 11. He submits that the mandate of Section 21(4)(B) is in no way diluted or affected by the pronouncement of Supreme Court in the case of Shahin (supra). He submits that the Supreme Court had granted bail to co-accused in this case so also to other accused who were guilty of commission of offences under the POTA, TADA etc. by invoking its constitutional powers and that too flowing from Article 142 of Constitution of India. These orders are rendered in the peculiar facts of those cases. They should be restricted to the Applicants before the Supreme Court and cannot be taken as precedents. There is no principle of law laid down which has to be followed. On the other hand, even in R.S. Sharma’s case (supra), the Supreme Court has adverted to section 21(4)(B) of MCOCA and has 11 made clear observations regarding the mandate of the same and held that it needs to be followed. There is no automatic bail. In such circumstances, other decisions must be seen in the typical, factual backdrop and should not be applied to this case. 12. For properly appreciating rival contentions, some of the provisions of MCOCA and the object and purpose of enacting the same needs to be referred to. In this context, the Supreme Court in the case of Ranjitsing B.Sharma v. State of Maharashtra reported in 2005(2) Bom.C.R.(Cri.)567 has observed thus:- "30: The interpretation clause as regard the expression ‘abet’ does not refer to the definition of abetment as contained in section 107 of IPC. It refers to such meaning which can be attributed to it in the general sense 12 with grammatical variations and cognate expressions. However, having regard to the cognate meaning, the term may be read in the light of the definition of these words under sections 107 and 108 of the Indian Penal Code. The inclusive definition although expansive in nature, "communication" or "association" must be read to mean such communication or association which is in aid of or render assistance in the commission of organized crime. In our considered opinion, any communication or association which the purview thereof. It must mean assistance to organised crime or organised crime syndicate or to a person involved in either of them. It, however, includes (a) communication or (b) association with any person with the actual knowledge or (c) having reason to believe that such person is engaged in assisting in any 13 manner, an organised crime syndicate. Communication to, or association with, any person by itself, as was contended by Mr.Sharan, would not, in our considered opinion, come within meaning of the aforementioned provision. The communication or association must relate to a person. Such communication or association to the person must be with the actual knowledge or having reason to believe that he is engaged in assisting in any manner an organised crime syndicate. Thus, the offence under section 3(2) of MCOCA must have a direct nexus with the offence committed by an organised crime syndicate. Such abetment of commission of offence must be by way of accessories before the commission of an offence. An offence may be committed by a public servant by reason of acts of omission and commission which would 14 amount to tampering with the investigation or to help an accused. Such an act would make him an accessory after the commission of the offence. It is interesting to note that whereas section 3(2) having regard to the definition of the term ‘abet’ refers directly to commission of an offence or assisting in any manner an organised crime syndicate, section 24 postulates a situation where a public servant renders any help or support both before or after the commission of an offence by a member of an organised crime syndicate or abstains from taking lawful measures under this Act. "31: Interpretation clauses contained in section 2(d), 2(e) and 2(f) are interrelated. An ‘organised crime syndicate’ refers to an ‘organised crime’ 15 which in turn refers to ‘continuing unlawful activity.’ As at present advised, it may not be necessary for us to consider as to whether the words "or other lawful means" contained in section 2(e) should be read "ejusdem generis"/ "noscitur-a-sociis" with the words (i) violence, (ii) threat of violence, (iii) intimidation or (iv) coercion. We may, however, notice that the word ‘violence’ has been used only in section 146 and 153-A of the Indian Penal Code. The word ‘intimidation’ alone has not been used therein but only section 506 occurring in Chapter XXII thereof refers to ‘criminal intimidation.’ The word ‘coercion’ finds place only in the Contract Act. If the words ‘unlawful means’ is to be widely construed as including any or other unlawful means, having regard to the provisions contained in sections 400, 401 16 and 413 of the IPC relating to commission of offences of cheating or criminal breach of trust, the provisions of the said Act can be applied, which prima facie, does not appear to have been intended by the parliament. "32: The Statement of Objects and Reasons clearly state as to why the said Act had to be enacted. Thus, it will be safe to presume that the expression ‘any unlawful means’ must refer to any such act which has a direct nexus with the commission of a crime which MCOCA seeks to prevent or control. In other words, an offence falling within the definition of organised crime and committed by an organised crime syndicate is the offence contemplated by the Statement of Objects and Reasons. There are offences and offences under the Indian Penal Code and 17 other penal statutes providing for punishment of three years or more and in relation to such offences more than one charge-sheet may be filed. As we have indicated hereinbefore only because a person cheats or commits a criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisions of MCOCA. "35: Sub-section (2) of section 3 inter alia provides for facilitating conspiracy or abetting or commission of a crime by a person knowingly or any act preparatory to organised crime. "36: The expression ‘conspiracy’ is not a term of art. It has a definite connotation. It must be read having regard to the legal concept which is now well-settled having regard to several 18 decisions of this Court in (Kehar Singh and others v. State (Delhi Admn.), A.I.R. 1988 S.C. 1883, (State of Karnataka v. L.Muniswamy and others), A.I.R. 1977 S.C.1489 and (P.K.Narayanan v. State of Kerala) 1995(1) S.C.C.142. "54: Section 21(4)(B) of MCOCA does not make any distinction between an offence which entails punishment of life imprisonment and an imprisonment for a year or two. It does not provide that even in case a person remains behind the bars for a period exceeding three years, although his involvement may be in terms of section 24 of the Act, the Court is prohibited to enlarge him on bail. Each case, therefore must be considered on its own facts. The question as to whether he is involved in the commission of organised crime or abetment thereof must 19 be judged objectively. Only because some allegations have been made against a high ranking officer, which cannot be brushed aside, may not be itself be sufficient to continue to keep him behind the bars although on an objective consideration the Court may come to the conclusion that the evidences against him are not such as would lead to his conviction. In case of circumstantial evidence like the present one, not only culpability or mens rea of the accused should be prima facie established, the Court must also consider the question as to whether the circumstantial evidence is such whereby all the links in the chain are complete. "55: The wording of section 21(4)(B), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for 20 bail has not committed an offence under the Act. If such a construction is placed, the Court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgement of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4)(B) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgement of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in future must be an offence under the Act and not 21 any other offence. Since it is difficult to predict the future conduct of an accused, the Court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. "56: It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail." 13. Analysing the offences thereunder, the Supreme Court has observed that the word "Abet" 22 as defined in the Act in Section 2(a) refers to the "organised crime syndicate". That term is defined in Section 2(f) to mean a group of two or more persons, who, acting either singly or collectively, as a syndicate or gang indulged in activities of an organised crime. The term "organised crime" is defined to mean any continuing unlawful activity undertaken as referred to in the definition either as a member of an organised crime syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency. The word continuing unlawful activity in short can be said to be an activity prohibited by law for the time being in force but the same is also carefully worded. 14. In the present case, a perusal of the 23 charge sheet insofar as it is relevant for the purposes of present application, discloses that the prime accused had floated a firm by name Metro Corporation at Kemps Corner, Mumbai in 1993-94. He opened a Bank account with the then Bank of Madurai being A/c.No.17240. Cash amount of Rs.8,33,000/- was deposited in this account. The present applicant, as a co-conspirator and member of organised crime syndicate so also as part of criminal conspiracy issued cheques to the tune of Rs.19,99,500/- which were credited to the above bank account. There was no ostensible transaction entered into by the present applicant with the prime accused. Earlier charge sheet mentions that the prime accused had established another firm Metro Exports to deal in export and import of dye-stuff. He opened an account with Uco Bank Colaba. There also a total amount of Rs.48 lakhs and odd was deposited. All this was done by him to show that he has some legitimate business dealings. It has been demonstrated 24 prima facie that during the course of counter-feiting Government stamps and stamp papers, the prime accused established close contacts with police officials. It is alleged that there are several instances of money laundering inasmuch as amounts credited in several accounts including that pertaining to present applicant consisted of amounts which were proceeds of the sale of fake stamps and stamp papers. This amount was later on utilised for the purpose of carrying on another illegal business i.e. Kerosene business which is being investigated separately by C.B.I. Applicant is a permanent income tax payee. His accounts were utilised for money laundering, from which amounts he utilised the DD obtained for import of pulses and other materials purchased from S.T.C., a Govt. of India undertaking. Once the accounts were seized and study thereof revealed that a sizable amount of money was diverted to bank accounts for import of Nafta, which later on was 25 used for clandestine business, the charge sheet refers to the role of accused No.45, Anil Gote. As far as the activity of seeking protection and immunity from legal punishment is concerned, in the charge sheet it is alleged thus:- "64. While continuing these unlawful activities, it was also necessary to ensure that the Organised Crime Syndicate was given the necessary protection and immunity from legal punishment and with that objective in mind AKL Telgi (A-23) developed contacts with politicians and Public Servants and subverted them and went to the extent of sharing the booty from out of the ill-gotten gains of the Organished Crime Syndicate. During the period that AKL Telgi (A-23) was in Central Prison, Bangalore the present case came to be detected and registered, despite having made initial attempts from 26 the Central Prison, Bangalore through the members of his Organised Crime Syndicate to sabotage the investigation, which is evident by the fact that Manoj Ramesh Mehta (A-43) was camping in Pune in Hotel Pride on 7th June 2002 and AKL Telgi (A-23) had sent Rs.5 lacs through Tabrez Ahmed Abdul Rahim Telgi (A-64) to Manoj Ramesh Mehta (A-43), who was the mediator and who had even on previous occasions acted as such. Though, the case came to be registered on 7th June 2002 with a view to sabotage the investigation an officer closely associated with the investigation viz., ACP Mohd. Chand Mulani (A-61) was subverted through Abdul Rashid S. Kulkarni (A-49), and was paid an amount of Rs.15 lakhs as illegal gratification. Similarly, huge amounts were paid to scuttle the investigation in Mumbai cases against the members of the 27 Organised Crime Syndicate through Dilip P. Kamath (A-44) as elaborated in this charge sheet. Also, in a case registered in the year 1999 at PS Meera Road, Vide C.R.No.274 of 1999 an amount of Rs.50,000/- was paid through Pratap Kakade (since deceased) to subvert the police officers and scuttle the investigation and indeed, though the investigating team could discover the printing press from where the counterfeit Govt.stamps and stamps papers were being printed did not take any measures to seize or seal the press. Similarly, on 20th may 2002 an amount of Rs.15 lakhs was arranged to be paid through Kadarsha Mohd. Singoti (A-8) by AKL Telgi (A-23) to Vashistha Rambhau Andhale (A-55) for ensuring that no legal action whatsoever is initiated against the members of the Organised Crime Syndicate, who had in 28 fact been found with counterfeit Govt.Stamps and stamp papers." 15. My attention is also invited by Mr.Thakare to various statements recorded during the course of investigation and to the report of preliminary investigation in connection with the subject C.R. He has also invited my attention to the order passed by the Special Judge dated 8th October 2004 with regard to the Polygraph test of the present applicant. The Polygraph test and its report are also forming part of the documents. From this it is tried to be demonstrated by the applicant that he was working as a commission agent only with regard to the dealings in pulses and spices. It is also brought to my notice by Mr.Thakare that the role of the applicant is that of a middle man or a mediator in several dealings and transactions. 16. Even the learned Special Judge has 29 referred to the material collected during investigation. He has made reference to the money transactions between the applicant and the prime accused. He has referred to the prosecution case that these transactions were shown apparently during the course of import of pulses through S.T.C. However, there is reason to believe that they are infact money laundering operations carried out on behalf of organised crime syndicate.