1 HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4297 OF 2008 Mohammed Sayed Mohammad Yasin Shaikh ..Petitioner Vs. Central Bureau of Investigation ..Respondent Mr. Nitin Sejpal with Ms. Pooja Bhojane for the Petitioner. Mr. Raja Thakare with A.M. Chimulkar for the Respondent/CBI. Mr. H.J. Dedhia, APP for the State. CORAM :- V.C.DAGA, J. ORDER RESERVED ON 16TH JUNE, 2009 ORDER PRONOUNCED ON 24TH JUNE, 2009 ORDER 1 This second bail application is moved by the accused applicant-petitioner before this court. First one was rejected by this court on 25.10.2007. The said order was subject matter of Special Leave Petition (Criminal) No. 4118 of 2008. In the said petition notice was issued to the CBI and the respondent No.2. They filed an affidavit along-with list of evidence collected against the applicant- petitioner after his arrest till filing of the charge-sheet. Copies of which are produced on record. 2 The aforesaid Special Leave Petition was withdrawn by the petitioner since the other one accused person was enlarged on bail by this court and another accused by Special Judge under Maharashtra Control of Organised Crime Act, 2 after 25.10.2007. The petitioner-applicant, therefore, withdrew Special Leave Petition which was permitted to be withdrawn under order dated 15.10.2008 with liberty to approach this court. In the aforesaid circumstances the applicant- petitioner has again moved this application before this court to seek bail under section 439 of the Code of the Criminal Procedure, 1973 (the Code) read with section 21 (4) of MCOC Act 1999. The Factual Matix: 3 The factual matrix reveals that, on 28.04.2002 petitioner was arrested by CBI and prosecuted at Upparpeth Police Station, Bangalore. Subsequently, the present applicant-petitioner was discharged by CBI. In spite of that the trial court proceeded against the petitioner and charge was framed against him. Thereafter, on 28th May, 2003 the petitioner was taken in four other cases registered in Mumbai in the year 1995 at Cuffe Parade Police Station, Colaba Police Station, G.B.C.B., C.I.D. Initially investigation was carried out by the concerned police station and thereafter transferred to CBI. All three crimes were clubbed for the investigation bear CBI Special Case Nos.111 of 2004, 112 of 2004 and 550 of 2007. In both cases CBI Special Case No.111 of 2004 and 112 of 2004 recording of evidence is completed and matter is posted for statement of accused under section 313 of Code of Criminal Procedure. In third case namely, CBI Special Crime No. 550 of 2007, only two or three witnesses are yet to be examined. 4 The applicant-petitioner was shown arrested on 30.10.2003 by Burd Garden police station in Crime No. 135 of 2002, MCOC Act provisions are started on the applicant-petitioner. He is now seeking bail by the present application. 5 It is also relevant to note that after the arrest of the applicant-petitioner by Upperpet police station, Bangalore in Crime No. 545 of 2002, the applicant- petitioner was produced before the concerned Judicial Magistrate First Class. The petitioner was initially remanded to Police Custody and thereafter to Judicial 3 Custody. Subsequently, charge-sheet came to be filed against the applicant- petitioner in the court of Judicial Magistrate First Class, Bangalore and case was committed to Sessions Court, Bangalore. The applicant-petitioner, thereafter, by order dated 27.01.2003 was released on bail by the learned Additional Sessions Judge, Banglore. 6 The applicant-petitioner also pointed out that he was transferred under production warrant issued by Hyderabad Special Court on the APCOC Act, 2001. The applicant-petitioner was shown arrested on 19.02.2004 in the case registered by CBI Hyderabad vide RC-4(E) 2004 EOW-I/DLI. He was initially remanded in CBI custody and thereafter Judicial custody. In the said case applicant-petitioner was enlarged on bail by the Special Judge under APCOC Act, 2001 by order dated 18.08.2004. 7 According to the applicant-petitioner after rejection of the first bail application by this court and withdrawal of the S.L.P. from the Apex Court, one another accused Mr. Abdul Rashid Kulkarni, Advocate (Accused No.49) has been enlarged on bail by the Learned Judge of this Court in Crime No. 4869 of 2004 vide order dated 21.10.2008. The brother of Mr. Abdul Karim Telgi namely, Ajim Telgi (Accused No.46) has been enlarged on bail by Special Judge under MCOC Act and one more accused Mr. Shridhar Waghade was ordered to be enlarged on bail by the Hon’ble Supreme Court. The Petitioner has also pointed out that one Dinesh Nambiar (Accused No.52) has also been enlarged on bail on 9th March, 2009 under MCOC Act by Special Judge, Pune. According to the applicant- petitioner all these facts are subsequent events resulting in change in fact situation warranting consideration of his prayer for bail. He states that he has already been in custody for about five years and for more than three years in the present case in which he is seeking the bail. 4 Submissions: 8 Learned counsel appearing for the applicant-petitioner urged on the above factual backdrop that the applicant-petitioner has been roped in the present case merely on the basis of statement of one accused Mr.Abdul Karim Telgi, that too after two years of registration of crime by Bund Police Station. In his submission, bare statement of accused is a weak piece of evidence. It requires corroboration. In the instant case, according to him, there is no corroboration showing involvement of the present applicant-accused in the present crime. 9 According to the counsel for the applicant-petitioner, it is not the case of the prosecution that any single stamp or stamp paper either from him or his residence was seized. He further submits that his case stands on better footing than the other accused, who have already been granted bail. According to him, gravity of the charges is more serious against them than the present applicant- petitioner. He further submits that the confessional statement of Mr. Tamraj Telgi who has pleaded guilty, has been convicted under MCOC Act and sentenced to R.I. for six years by the Special Judge Mr. C.K. Bedi cannot be used against him. It is his submission that merely because of confession made and pleaded guilty, said confession cannot be read as confessions of guilt of the accused. He further submits that there is no material to show that applicant-petitioner was directly involved in the alleged stamp scam along-with accused Abdul Karim Telgi. 10 He further submits that the MCOC Act was enacted in the year 1999 and there is no evidence against the applicant-petitioner showing any involvement of applicant-petitioner after 1999. Whatever evidence is sought to be brought on record, even if it is accepted as it is, it would be clear that the present applicant- petitioner has not been in the business and dealing stamps since 1994. He further submits that one envelope sought to be relied upon against the applicant- petitioner in which gum wash stamps alleged to have been sent to Mr. Telgi much 5 prior to 1999 can hardly result in conviction of the applicant-petitioner. He, thus, submits that, this is a fit case for grant of bail. 11 The learned counsel for the applicant-petitioner placed emphasis on the changed circumstances contending that subsequent release of Mr. Rashid Kulkarni, Dinesh Nambiar as well as Abdul Ajij Telgi against whom identical charges were framed needs to be considered as change in circumstances and to grant bail on parity. He, thus, submits that, the applicant-petitioner is entitled to be released on bail. Reliance is placed on number of judgments of this court as well as that of Apex Court, viz; Chenna Goya Krishna Yadav Vs. State of Maharashtra, (2007) 1 SCC (Cri.) 329 and Gokul Bhagaji Patil Vs. State of Maharashtra and another, (2007) 1 Supreme Court Cases (Cri.) 597. 12 In order to claim parity, reliance is placed on the Division Bench Judgment of this Court in the case of Many Vs. State of Goa 1995 (1) Bombay CR 334. He has also placed reliance on the another Division Bench Judgment of this court in the case of Appa Prakash Vs. State of Maharashtra, 2006 ALL MR Cr. 2804 in support of the submission that in order to seek conviction, the prosecution must show involvement of the accused subsequent to the enactment of MCOC Act i.e. after the year 1999. In his submission, any act committed prior to enactment of MCOC Act can only provide background and cannot be a foundation to presume involvement in organised crime. 13 On the aforesaid background and the legal submissions made by the learned counsel for the applicant-petitioner prayed for grant of bail in favour of the applicant-petitioner. 14 Per contra the learned Special Prosecutor strongly opposed the above prayer for bail. He submits that the applicant having suffered an order of rejection of the bail from this court and subsequent rejection of SLP as withdrawn, this court need not go into the factual details of the matter on merits particularly 6 because the trial court has now framed the charges in consonance with the directions of this court. He submits that no new ground for consideration of this application can be pressed into service. 15 The learned Special Prosecutor further tried to distinguish the features of the case in hand as against the accused who were already granted bail. In his submission, Abdul Rashid Kulkarni was granted bail by this court holding that in all probability charge will be framed under section 409 of the Indian Penal Code read with section 24 of the MCOC Act. As such, the rigorous section 24 (1)(b) of the MCOC Act was not taken into account. In his submission in-fact, a grave charge has been framed against Mr. Abdul Rashid Kulkarni. The order of grant of bail is in appeal before the Apex Court, since this court has granted leave to appeal. He further submits that Ajim Telgi was granted bail, since no charge was framed under section 3 of the MCOC Act against him. He further submits that so far as Dinesh Nambiar is concerned the charge was framed earlier, now re-framed charges are also same. According to him, present applicant-petitioner does have a previous criminal record thereby showing tendency to continue to commit crimes of the same nature. He, thus, submits that application for bail is liable to be rejected. Consideration: 16 It appears that one Abdul Karim Telgi was arrested and produced against alleged commission of offence of printing and distribution of counterfeit paper and stamp paper scam. During the investigation stamp paper of 2128 crore were seized. The allegations against the applicant-petitioner are two fold; the applicant- petitioner is a member of organized crime along-with accused Abdul Karim Telgi and they conspired to supply gum washed stamps in Mumbai and subsequently indulged in the counterfeit business of accused and thereby accused obtained pecuniary benefits. It further appears that the applicant-petitioner had been 7 dealing with Abdul Karim Telgi. Thus, the allegations against the present applicant-petitioner are that he formed syndicate, to help and facilitate the organisation of crime with accused Abdul Karim Telgi. 17 Since the provisions of MCOCA have been invoked in the present case, in addition to the basic considerations, namely, the nature and seriousness of the offence; the character of the evidence; reasonable apprehension of witnesses being tampered with and a reasonable possibility of the presence of the accused not being secured at the trial, etc.; which normally weigh with the courts for granting bail in non-bailable offences, the limitations imposed in sub-section (4) of Section 21 of MCOCA need to be kept in view while deciding whether or not the applicant is entitled to bail. The relevant provision reads as under: “21. (1)-(3) * * * (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 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 is not likely to commit any offence while on bail. (5)-(7) * * * 18 The nature and scope of sub-section (4) of Section 21 of MCOC Act has been considered and explained by the Apex Court in Chenna Boyanna Krishna Yadav Vs. State of Maharashtra. Interpreting the said provision, Court has observed thus: (SCC pp.247-48, para 13) 8 “It is plain from a bare reading of the non obstante clause in the sub— section that the power to grant bail by the High Court or the Court of Session is not only subject to the limitations imposed by Section 439 of the Code but is also subject to the limitations placed by Section 21 (4) of MCOCA. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression ‘reasonable grounds’ means something more than priam facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provisions requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Thus, recording of findings under the said provision is a sine qua non for granting bail under MCOCA.” 19 In R.B. Sharma Vs. State of Maharashtra, 2005 ALL MR (Cri.) 1538 (SC), the Apex Court while construing the provisions of MCOC Act some what liberally, (S.B. Sinha, J. speaking for a three Judge Bench of the Apex Court) observed thus: (SCC pp.318-19, paras 43-44 & 46) “43. Section 21 (4) of MCOCA does not make any distinction between an offence which entails punishment of life imprisonment and an imprisonment for 9 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 be judged objectively. ... 44. The wording of Section 21 (4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for 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 judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21 (4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment 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 any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily 10 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. 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.” 20 The consideration which normally weigh with the court in granting bail in non-bailable offences have been explained by the Apex Court in State V. Capt. Jagjit Singh and Gurucharan Singh V. State (Delhi Admn.) and recently in Jayendra Saraswathi Swamigal V. State of T.N., which are: (SCC pp.21-22, para 16) “... the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being 11 secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.” 21 At this juncture, it is relevant to mention that the earlier bail application which was rejected by an order dated 25th October, 2007 because bail application filed prior thereto being Criminal application No. 4325 of 2004 was withdrawn by the present applicant-petitioner on 17.07.2007 without keeping any reservation. Consequently, bail application was not entertained by this court holding that another bail application would not be maintainable unless there is a change in circumstance. It is, thus, clear that at no point of time the application filed by the applicant-petitioner was considered on its own merit by this court. Now the change in the circumstances is obvious since the charge is framed, three accused persons namely, Abdul Rashid Kulkarni Accused No.49, Abdul Ajim Telgi Accused No.46 and Dinesh Nambiyar Accused No.52 against whom charges are framed are enlarged on bail. The details of the charges framed against those accused persons are being reproduced herein below for immediate reference since the applicant-petitioner is seeking bail on parity. Sr. No. Name of Accused Sections in present charges Sections in previous charges Date of grant of bail Court which granted bail 1 AR Kulkarni (A-49) Sec.3(2), 3(3),3(4), 3(5) & 4 of MCOC Act Sec.3(1)(ii), 3(2),3(4), 3(5) & 4 of MCOC Act, 1999 r/w 120-B of the IPC. 21st August, 2008 Hon’ble Bombay High Court 12 2 Azim Telgi (A-46) Sec.109 r/w 255 & 258 IPC, Sec.3(2), 3(4) & 3(5) of MCOC Act Sec.24 & 4 of MCOC Act, Sec. 506 r/w 120-B of IPC 22nd July, 2008 Hon’ble MCOCA Special Court, Pune 3 Dinesh Nambiar (A-52) Sec.255 of IPC, Sec. 3(1)(ii)of MCOC Act Sec.3(1) (ii) of the MCOC Act & sec.255 r/w 120-B of IPC 9th March, 2009 Hon’ble MCOCA Special Court, Pune 22 The Division Bench Judgment of this Court in the case of Menino Lopes (cited supra) observed as under: “8. We have also taken note of the fact that the other two accused persons have already been released on bail. While it cannot be a strait-jacket formula that the accused must be released on bail if his co-accused has been so released, because the accusation against the latter may be of lesser gravity and there may be other circumstances differentiating one co-accused from the other, yet if the co-accused persons are otherwise equally placed, then there may be no good reason why an accused shall be denied bail where his co-accused has been released. This is also the view of Chief Justice Harries in Kamla Pandey (supra) where he said that “I cannot see what real danger is in granting this man bail when his co-accused has been granted bail”. We have also noted that, as the record now stands, the allegation against one 13 accused, who has already been released on bail, is probably graver that the applicant before us. 23 In view of the aforesaid legal position, the application for bail on change in fact situation, can be considered on its own merits. 24 Having said so, it is not in dispute that the charges are framed against the present applicant-petitioner. The bail has been granted to Mr. Abdul Rashid Kulkarni, Mr.Abdul Ajim Telgi and Mr. Dinesh Nambiar. Inspite of reframing the charges and gravity thereof no steps have been taken by the State to seek cancellation of their bail granted to Mr. Abdul Rashid Kulkarni and Aabdul Ajim Telgi. Thus, it, unequivocally, denotes that the order of bail in favour of Abdul Ajim Telgi and Dinesh Nambiar has been accepted by the prosecution. The charges against Ajim Telgi, if perused, are grave and serious. Mr.Dinesh Nambiar is also facing charges under MCOC Act. Their cases can conveniently be treated at par with that of the applicant-petitioner. So far as, the bail granted to Abdul Rashid Kulkarni Accused No.49 is concerned the charges against him are also grave and serious. It is no doubt true that the application for cancellation of his bail is pending, but the facts remain that he has already been enlarged from bail. In the event, it is cancelled, prosecution can also move cancellation of bail against the present applicant-petitioner but pendency of application for cancellation of bail cannot be a ground to ask him to wait for bail till cancellation application is decided. 25 Apart from the above, after the rejection of the bail application of the applicant-petitioner by this court, the statements of two witnesses namely, Mr.Bimal Narayan Das and Mr. Tapan Dhang were recorded, wherein in the examination in chief itself, it has come that accused-applicant has stopped his business since 1994. In the cross examination the said witnesses have also admitted that he has closed his business since 1994 and that he for the first time 14 after 15 years came to Mumbai in the month of March, 2009. The alleged cover of envelope sought to be relied upon can hardly be given much importance so as to prima facie reach to the conclusion that it will result in conviction of the accused-applicant. 26 Bearing in mind aforesaid facts and circumstances brought on record, at this stage it is neither necessary to arrive at positive finding as to whether or not under section 24 of MCOC Act accused would be convicted. What is seen is: whether there is no reasonable possibility to justify satisfaction that the accused is not guilty of the offence under MCOC Act. The circumstances on record may show the applicant-petitioner’s acquaintance with Telgi but may not per se be sufficient to prove the applicant-petitioner’s direct role with the commission of an organized crime by Telgi, to bring home an offence of abetment in the commission of organised crime falling within the ambit of the provisions of MCOC Act and/or that he had rendered any help or support in the commission of an organised crime whether before or after the commission of such offence by a member of an organised crime syndicate, especially after 1999. 27 The applicant has crossed the age of 60 years. He is a senior citizen. He has already been in custody for more than five years. Main accused Telgi convicted for 13 years. Considered in this canvass, the applicant has suffered custody for a sufficiently long period. In this background it will not be out of place to mention that when the gravity of the offence alleged is severe, mere period of incarceration or the fact that the trial is not likely