jpc appln5617-09 &5618-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5617 OF 2009 Shivnarayan Gopalsingh Kalsangra ... Applicant Versus The State of Maharashtra ... Respondent WITH CRIMINAL APPLICATION NO. 5618 OF 2009 Shyam Bhavarlal Sahu ... Applicant Versus The State of Maharashtra ... Respondent Mr. Milan Desai a/w Mr. Deepak Raval i/by Mr. Sunil V. Vichare, for the applicants. Ms. Rohini Salian and Mr. Mandar Goswami, Special Public Prosecutors for the N. I. A. Mrs. S.D. Shinde, for the State CORAM:- A.M. THIPSAY, J. DATED :- 3rd August, 2011. P.C. : 1. These two applications can be conveniently disposed of by this common order as both the applicants are the accused in the same case. There are totally 12 accused, including the applicants, who have been jpc appln5617-09 &5618-09.sxw 2 arrested in this case. 2. The applicant in Cri. Application No. 5617/2009 is the accused No.2 and applicant in Criminal Application No. 5618/2009 is accused no. 3 in the said case, which is in respect of the bomb blast that took place in Malegaon, District Nashik on 29/9/2008. 3. The allegation against the applicants and the other accused is that they have committed the offences punishable under sections 302 of the Indian Penal Code (IPC), 307 IPC, 326 IPC, 324 IPC, 427 IPC, 153- A IPC, 419 IPC, 420 IPC read with section 120-B IPC and also the offences punishable under the Arms Act and the Explosive Substances Act. The applicants and other accused are also alleged to have committed the offences punishable under the provisions of the Unlawful Activities (Prevention) Act, 1967 and the offences punishable under the Maharashtra Control of Organized Crime Act (MCOC Act). 4. Mr. Milan Desai, the learned advocate for the applicants, contended that there was no material to connect any of the applicants with the alleged offences. He submitted that the hearing of the bail application was delayed due to a number of circumstances. 5. I have heard today Mr. Rohini Salian, the learned Special Public Prosecutor, at length. I have also heard Mr. Milind Desai, the learned advocate for the applicants. jpc appln5617-09 &5618-09.sxw 3 6. The facts of the prosecution case, in brief, are as follows: On 29th September, 2008, at about 21.35 hours, three was a bomb explosion opposite Shakil Goods Transport Company, between Anjuman Chowk and Bhiku Chowk, Malegaon. The blast took place by an explosive device fitted on LML Freedom motorcycle bearing registration number MH-15-P-4572. Six persons were killed and 101 were injured as a result of the said explosion. Investigation commenced and in the course of investigation, totally 12 persons came to be arrested. Some others are wanted. In the course of investigation it was revealed that a criminal conspiracy had been hatched for causing the bomb blast. It was revealed that some of the accused were associated with an organization by name 'Abhinav Bharat'. 7. Ms. Salian informed that investigation has recently been taken over from the original investigating agency by the National Investigating Agency and that, further investigation into the matter is still going on. 8. In her lengthy arguments, which took more than one and half hour, Ms. Salian has pointed out the seriousness of the alleged offences and the material available in the charge-sheet against some of the other accused. However, as regards the material showing the involvement of the applicants in the alleged offence, she had very little to show, and jpc appln5617-09 &5618-09.sxw 4 this part of her argument hardly required any time 9. I have carefully considered the matter with respect to the availability of the material against the applicants. 10. So far as the applicant Shivnarayan Gopalsingh Kalsangra ( In Cri. Bail Application No. 5617/09) is concerned, it appears that his brother Ramchandra Kalsangra is an accused in this case, who is yet to be arrested. Prima facie, it appears that there is sufficient material against the said Ramchandra Kalsangra to connect him with the alleged offences. The only material against the present applicant is that he was found to have kept in his house, two electronic timers which had allegedly been given to him by his brother-the said Ramchandra Kalsangra. Except this, there is no other material against the applicant- Shivnarayan Kalsangra. 11. The relevance and significance of the 'electronic timers' for levelling allegation against the applicant is said to be that 'the timers were used in the blast, that had taken place on 29th September, 2008'. Admittedly, these electronic timers, by themselves, cannot be called as incriminating articles. They can be used for perfectly innocent purposes . Moreover, it is not disputed before me that the applicant runs a shop of electronic goods and therefore, his having possessed 'electronic timers' is not a matter which can be expected to create jpc appln5617-09 &5618-09.sxw 5 suspicion against him. Further, in any case, these timers had been given, allegedly, to the applicant by his brother before the bomb blasts had taken place. 12. After carefully considering the case of the prosecution as a whole, it appears that there is sufficient material against the said Ramchandra Kalsangra, the said brother of the applicant, to show his involvement in the alleged offences. All that can be said about the present applicant is that he might be aware of the philosophy of his brother and the fact that his brother has been indulging in some unlawful and criminal activities. This fact, however, by itself would not be sufficient to show that the applicant was also a conspirator and had conspired with the other accused to commit the alleged offences. 13. The matter has also to be looked at from the following point of view. 14. During the course of investigation, several statements of several persons came to be recorded. Even the confessions of three accused have been recorded. Evidence has been collected in the form of record in Laptop and CDs, showing that there had been meetings between the accused persons at various places where the conspiracy had been hatched from time to time. Significantly, inspite of availability of such voluminous evidence, there is no material to show the presence of the jpc appln5617-09 &5618-09.sxw 6 applicant Shivnarayan Kalsangra, during any of the meetings. His name does not find a mention in the statements of any of the witnesses, or in the confessional statements made by any other accused. Thus, the non-availability of any satisfactory material against the applicant Shivnarayan Kalsangara, becomes much more significant in the light of availability of such material against some of the co- accused. 15. As regards Shyam Bhavarlal Sahu, the applicant in Criminal Bail Application No. 5618/2009 also, I do not find that there is sufficient material to show his prima facie involvement in the alleged offence. He is stated to be a business partner of Ramchandra Kalsangra. While there could be business association- quite close between the the applicant Shivnarayan Kalsangra and the said Ramchandra Kalsangra- it cannot be said that, that by itself, would indicate that Shyam Bhavarlal Sahu adopted the philosophy of said Ramchandra Kalsangra which, allegedly, led to the alleged offences. At any rate, there is no material to indicate that he took an active part, or committed any act, suggesting his involvement in the alleged conspiracy. There is no material to show that he attended any of the meetings which took place in various cities, the record which is claimed to be available with the investigating agency. He is also not mentioned by any of the co- jpc appln5617-09 &5618-09.sxw 7 accused in their confessional statements. 16. The case against the present applicants, at best, can be that they were vaguely aware of the activities of Ramchandra Kalsangra, and that they were, in all probability, aware of his views on certain issues, which allegedly led to the commission of the alleged offence. This, however, would be insufficient to fasten criminal liability on them; and at any rate, insufficient to indicate that the applicants are involved in the alleged offences, even prima facie. 17. It may be observed that not only there is no material to indicate that any of these applicants was present during any of the meetings of the accused persons held in various cities, there is also not even an allegation to that effect. The prosecution admits that the applicants were never present in any such meetings of which the investigating agency claims to be having evidence. Thus, as already observed, the lack of material against that applicants which, by itself, would be a factor weakening the case of the prosecution, when viewed in the context of availability of the material against the other accused, makes it still more difficult to accept that there exists a prima facie case against the applicants. 18. Undoubtedly, the provisions of the MCOC Act and the Unlawful Activities (Prevention) Act, put some restrictions on the discretionary jpc appln5617-09 &5618-09.sxw 8 power of the Court to release the offenders charged with those offences, on bail. However, it cannot be doubted that such restrictions would come in play only if there exists a prima faice case. Rather, if there are reasonable grounds for believing that an accused, charged with the offence punishable under the MCOC Act, may not be guilty of any offences under the provisions of the said Act, the Court retains its discretion to release such accused on bail. Sub section( 5) of Section 43- D of the Unlawful Activities (Prevention) Act, 1967, inter alia, provides that an accused person shall not be released on bail, if the Court is of the opinion that there are reasonable grounds for believing the accusation against such accused person is prima facie true. Needless to say that such satisfaction is required to be derived on the basis of the material on record. In view of the aforesaid discussion, such belief cannot be formed against any of the present applicants. 19. The applicants are in custody since October, 2008. The trial has not yet commenced. In fact, the claim is that the investigation is still going on and obviously there are no prospects even of commencing of the trial in near future. 20. The applicants cannot be deprived of their liberty when there is no sufficient material to justify their further detention and merely because the offences in question are of a very serious nature. The jpc appln5617-09 &5618-09.sxw 9 gravity and seriousness of the offence is one thing and connection of an individual with the alleged offences is quite another; and the examination of the material, on the basis of which the allegations are levelled, cannot be successfully prevented by highlighting the magnitude or seriousness of the offences. 21. In my opinion, the applicants deserve to be released on bail. 22. The applications are allowed. 23. The applicants are ordered to be released on bail in the sum of Rs.1,00,000/-(Rupees one lakh) each, with one surety in like amount, or two sureties in the sum of Rs.50,000/- each, on the condition that they shall report to the office of ATS, Mumbai on every Monday, between 12 noon to 1 p.m., until further orders. (A.M. THIPSAY, J.)