1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.198 OF 2002 Tabassum Khan Kayyum Khan .. Appellant versus The State of Maharashtra .. Respondent ... Mr.Ayaz Khan & Rajendra Bidkar for the appellant. Mr. A.M. Shringarpure, APP for the State. A N D CRIMINAL APPEAL NO. 281 OF 2002 Ajit Gopal Chavan @ Rahul Rane & Ors. .. Appellant versus The State of Maharashtra .. Respondent Mr.Rajendra Shirodkar for the appellant. Mr.A.M. Shringarpure, APP for the State. CORAM : V.M. KANADE, J DATED : 23rd September, 2004 ORAL JUDGEMENT:- ORAL JUDGEMENT:- ORAL JUDGEMENT:- 1. Both these appeals are filed by the original accused challenging the judgement and order passed by the Special Court constituted under the MCOC Act 1999 and the appellant in both these appeals are convicted by the trial Court by judgement and order dated 15th and 17th January 2002. Since both these appeals arise out of a common judgement, they are being disposed of by this judgement. The appellant in Criminal Appeal no.198 of 2002 is original accused No.1 and appellants in Criminal Appeal no.281 of 2002 i.e. Ajit Gopal 2 Chavan, Sunil Kumar Devaji Bhedwale, Radheshyam Ramchandra Junwal, Rajesh Premchand Katoch, Ramesh Ramnath Shetty and Ajit Tukaram Sawant are the original accused nos. 2 to 7. All these appellants were convicted for having committed an offence u/s.120B of the IPC r/w sec.3(2) and 2(1)(a) of the MCOC Act 1999 and sentenced to suffer RI for five years and to pay fine in the sum of Rs.5,00,000/- each and in default to suffer RI for 1 year and 3 months. They were also convicted for the offence u/s.120-B r/w 307 of the IPC and section 3(1)(ii) of the MCOC Act 1999 and sentenced to suffer RI for five years and to pay fine of Rs.5,00,00/- each and in default to suffer RI for 1 year and 3 months. Appellant Tabassum Khan original accused no.1 was found guilty and convicted of the offence u/s.25(1-A) r/w sec.7 of the Arms Act and sentenced to suffer RI for five years. Accused no.7 was found guilty and convicted for the offence u/s.3(iv) of the MCOC Act and sentenced to suffer RI for seven years and to pay fine in the sum of Rs.5,00,000/- and in default to suffer RI for one year and six months. Accused nos.1 to 6 were acquitted for the offence punishable u/s.3(iv) of the MCOC Act 1999. 2. The prosecution case is that the original accused nos.1 to 7 appellants herein along with 3 absconding accused nos.8 to 10 hatched a criminal conspiracy between July 1999 and 10.11.1999, and conspired to commit organised crime and attempted to commit murder of the complainant Aziz Gulab Malik with a revolver on 10.11.1999 at about 11.p.m. in front of a restaurant at Andheri(E) Mumbai. The prosecution case is that on 11.11.1999 at about 4.00 a.m, information was received by the Andheri (E) Police station that a person by name Aziz Gulab Malik had sustained bullet injury on his back and was shot at by unknown persons. The injured Aziz Gulab Malik gave the First Information Report at about 3.00 a.m. and an FIR was registered. During the course of investigation, Shri Naval Driver took search of the residential premises of the accused no.1 Tabassum Khan and recovered two fire arms loaded with live cartridges. The appellant was arrested after she surrendered to Judicial Custody on 23rd February 2000. A proposal was made for prior approval u/s.23(1)(a) of the Maharashtra Control of Organised Crime Act 1999 and the Addl. Commissioner of Police granted approval by order dated 3rd April 2000. The tape recorded conversation between the appellant Tabassum Khan and absconding accused Chhota Shakeel were heard and transcripted and the panchnama was drawn in respect of the audio cassette which contained the said 4 conversation. The voice of absconding accused Chhota Shakeel was identified. Accused no.2 was arrested by DCB CID in C.R. no.102 of 1999. Sanction to prosecute the accused under the provisions of MCOC Act 1999 was granted by order dated 18.10.2000. Accused nos.3 to 6 were arrested in transfer warrant in this case on 29.8.2000. The statement of accused no.3 Sunil Bhedwale was recorded on 9.9.2000 in the presence of panchas. Charge-sheet was filed against the accused and charge was framed on 3rd April 2001. They pleaded not guilty to the said charge. Prosecution examined 44 witnesses. The trial court on the basis of the said evidence convicted the accused. The appellants have preferred this appeal against the said judgement and order. 3. In the present case so far as original accused no.1 is concerned, Tabassum Khan, the evidence against her is in the form of tape recorded conversation and the recovery of two fire arms from her residence. The allegation against the appellant Tabassum Khan is that she had paid certain amounts to Taran Arora at the instance of the complainant PW no.1 for purchasing a property. However, the said Taran Arora had sold the property to some other persons and had not returned the money. It was alleged by the prosecution that 5 accused no.1 Tabassum Khan contacted Chhota Shakeel on phone and hatched a conspiracy to kill PW no.1 Aziz Gulab Malik and as a result accused nos.2 to 7 along with absconding accused nos.8 to 10 attempted to commit murder of PW no.1 on 10.11.1999. 4. The prosecution case is that sanction to record the conversation of Tabassum Khan accused no.1 was granted on 2nd July 1999 by the Addl. Chief Secretary (Home) Government of Maharashtra u/s.5(2) of the Indian Telegraph Act and PW no.5 recorded the conversation. ON the basis of this conversation, prosecution has alleged that the accused no.1 had association with organised crime syndicate. So far as the evidence against accused No.1 in respect of charge u/s.307 is concerned, PW no.1 who is the complainant has not blamed the accused no.1. He has not stated that the accused no.1 had threatened him or they were on enemical terms at any time or that there was any motive for the accused no.1 to assault the complainant. So far as accused No.1 - Tabassum is concerned, the question which falls for consideration before this Court is i) whether there is any sufficient evidence on record to prove that the authorisation granted by the Addl.Chief Secretary was a valid authorisation u/s.5(2) of the Indian 6 Telegraphic Act. ii) Whether there was sufficient evidence to prove that the appellant no.1 Tabassum Khan had committed an offence u/s.307 r/w sec.120-B of the IPC. iii) whether the recovery of the fire arms from the premises of the accused no.1 Tabassum Khan had been proved beyond reasonable doubt by the prosecution and iv) whether there was any evidence to prove the association of Tabassum Khan with organised crime to convict her under the MCOC Act. 5. In order to establish the case against the accused no.1 Tabassum Khan under the MCOC Act, the prosecution is relying on the evidence of PW no.5 who recorded the conversation between Tabassum Khan and Chhota Shakeel. PW no.5 Ravindra Ambuji Wani has stated that he was working in the Crime Branch as PSI in the year 1999 and was working in the computer cell of the DCB CID Bombay, Unit no.2. He has stated that it was his duty to collect information regarding offences committed by organised crime and informed the same to his superior officer. He has stated that Shaikh Babu Shaikh Shakeel @ Chhota Shakeel was on the police record as a wanted criminal and he was presently based at Karachi at Pakistan. According to him, in June 1999, he has received secret information that one lady by name Tabassum having a mobile phone 7 was in communication with Chhota Shakeel based at Karachi, Pakistan. He therefore informed his superior Officer, verified the mobile phone number and made arrangement for facilities to listen to the mobile phone conversations between Tabassum and Chhota Shakeel. 6. PW no.5 has stated that on 20th July 1999 at 8.15 p.m, he heard the conversation between two people. One voice was that of the lady and the other voice was of a gentleman. Then he heard the words "C.S" He started recording the conversation. In the said conversation, there was a reference regarding the business of Taran and one Salil. Accused no.1 Tabassum thereafter stated that there was a transaction of land at Borivali and that one Aziz had lied to her to save Taran. At that time, male voice assured her that he would not leave him and that he had undertaken the responsibility of recovering the money claimed by the lady. He then removed the cassette and sealed it and signed on the label of the cassette. Thereafter, according to him in June 2000, ACB Dengle from the Andheri Police station met him and Shri Dengle narrated the case lodged at C.R. 490 of 1999 at Andheri Police station and informed him about the firing incident in which one Aziz Gulab Malik was 8 attempted to be killed. He thereafter went to the Andheri Police station on 2nd January 2000 along with the sealed cassette. ACP Dengle, PI Driver and API Prabhu were present. They called two panchas and tape recorded cassette was heard by this panchas. A transcript was prepared. thereafter, complainant Aziz Malik and Taran Arora were called to the police station who identified the male voice as that of Chhota Shakeel and female voice as that of lady Tabassum. PI Talwalikar identified the male voice in the conversation as that of Chhota Shakeel. The statement of panchas were taken on the labels fixed on the audio cassettes. PI Driver countersigned it. The learned counsel appearing on behalf of the appellant has taken me through the transcript of the video cassette. In my view, apart from stray reference to Taran Arora and Aziz, there is no conversation in the said cassette which would indicate there was a conspiracy to eliminate Aziz. In the said conversation, there is reference to various topics and it appears to be a general conversation relating to number of topics. There is also a reference to Kargil war. However from the said conversation, it is difficult to come to a conclusion that there was a definite conspiracy between Tabassum Khan and Chhota Shakeel to eliminate Aziz Gulab Malik PW no.1. 9 7. The law regarding interception of telephone conversation is quite well settled. The Supreme Court in its decision in the case of People’s Union for Civil Liberties Vs. Union of India AIR 1997 S.C. 568 has laid down the circumstances under which the powers of interception of telegraphic conversation to be invoked. The Supreme Court in paragraph no.29 of the said judgement has observed as under:- "The first step under Section 5(2) of the Act, therefore, is the occurrence of any public emergency or the existence of a public safety interest. Thereafter the competent authority under Section 5(2) of the Act is empowered to pass an order of interception after recording its satisfaction that it is necessary or expedient so to do in the interest of (i) sovereignty and intergrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, (iv) public order, or (v) for preventing incitement to the commission of an offence. When any of the five situations mentioned above to the satisfaction of the competent authority 10 require then the said authority may pass the order for interception of messages by recording reasons in writing for doing so. The Supreme Court thereafter has observed in paragraph no.30 as under:- "The above analysis of Section 5(2) of the Act shows that so far the power to intercept messages/conversations is concerned the Section clearly lays down the situations/conditions under which it can be exercised. But the substantive law as laid down in section 5(2) of the Act must have procedural backing so that the exercise of power is fair and reasonable. The said procedure itself must be just, fair and reasonable. It has been settled by this Court in Maneka Gandhi Vs. Union of India (1978) 2 SCR 621 :(AIR 1978 SC 597), that "procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right 11 itself". Thus, understood, "procedure" must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalised only by civilised processes". 8. The Apex Court thereafter observed that no procedure had been prescribed for the exercise of the power u/s.5(2) of the Act and that no rules had been framed u/s.7(ii)(d) of the Act for providing the precaution to be taken for preventing improper interception in disclosure of messages. The Supreme Court thereafter observed that it was necessary to lay down the procedural safeguards of the exercise of power u/s.5(2) of the Act in order to protect the right of privacy of a person. The Apex Court thereafter gave certain directions. It would be relevant and profitable to refer to these directions which are given paragraph no.35 which reads as under:- We, therefore, order and direct as under:- 1. An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued except by the Home Secretary, Government of India (Central Government) and Home Secretaries of the State Governments. In an urgent case the power may be delegated to an officer of the Home Department of the Government of India and the State Government not below 12 the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned within one week of the passing of the order. 2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by means (of) a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such person and in such manner as are described in the order. 3. The matters to be taken in to account in considering whether an order is necessary under Section 5(2) of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means. 4. The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses, specified in the order, being an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified or described in the order or one particular set of premises specified or described in the order. 5. The order under section 5(2) of the Act shall, unless renewed, cease to have effect at the end of the period of two months from the date of issue. The authority which issued the order may, at any time before the end of two months’ period renew the order if it considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months. 6. The authority which issued the order shall maintain the following records:- 13 (a) the intercepted communications, (b) the extent to which the material is disclosed. (c) the number of persons and their identity to whom any of the material is disclosed. (d) the extent to which the material is copied, and (e) the number of copies made of any of the material. 7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act. 8. Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act. 9. There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government. (a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act. (b) If on an investigation the Committee concludes that there has been a contravention of the provisions of 14 Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material. (c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section 5(2) of the Act, it shall record the finding to that effect. From the directions which are given by the Apex Court in paragraph no.35, it can be seen that after the order of authorisation is granted by the competent authority it has to be sent to a review committee within 7 days. In the present case, there is no evidence to show that the said authorisation was sent to a review committee in 7 days. Similarly, the Officer intercepting message is required to maintain proper record regarding details of time, date, duration, particulars of persons etc. PW no.5 in his cross-examination has admitted that he had not maintained any data or record or log book about the interception. From the record, it appears that the order of sanction has been filed. However, the sanctioning authority has not been examined. A Division Bench of this Court in the case of State of Maharshtra Vs. JaiSingh Vadhusingh in Criminal Appeal no.1262 of 2002 has also relied on the ratio laid down by the Supreme Court in the case of 15 People’s Union for Civil Liberties Vs. Union of India reported in AIR 1997 S.C. 568 and has observed that where there was no evidence to show that the requirement of "occurrence of public emergency or public safety was satisfied, there was a contravention of the provisions of Telegraph Act. In para no.6, the Division Bench has observed as under:- "As a matter of fact, the interception of the telephone conversation was done, before the MCOC Act came into force, with effect from 24.4.1999. The interception so done was obviously done in view of the provisions of section 5 of the Indian Telegraph Act, 1887. However, the Supreme Court, in its decision, in case of People’s Union for Civil Liberties Versus Union of India, reported in AIR 1997 SC 568 have explained the provisions of Section 5 of the Indian Telegraph Act and laid down the principle that for invoking the powers of interception of telegraphic conversation two requirements are necessary to be fulfilled:- 16 (i) that there is occurrence of any public emergency or the existence of the public safety interest AND (ii) the Competent Authority under Sec.5(a) of the Act is empowered to pass an order of interception, after recording its satisfaction that it is necessary or expedient so to do in the interest of:- (i) ............... (ii) ............... (iii) ............... (iv) Public Order; (v) For preventing incitement to the commission of an offence." 9. The Division Bench of this Court in the case of Bharat Shantilal Shah & ors. Vs. State of Maharashtra reported in 2003(Bom) (Criminal) 947, has stuck down the validity of the provisions of section 13 to 16 of the MCOC Act. Thus, the only provision under the authorisation can be sought by the police for intercepting the conversation is under the 17 provisions of section 5(2) of the Telegraph Act and the rules frames thereunder:- "On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government 18 making the order or an officer thereof mentioned in the order. . Provided that the press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section." In my view the evidence of the recorded phone conversation cannot be considered. In the first instance, none of the five situations contemplated in para 29 of the judgment of the Supreme Court in PUCL case existed when sanction was granted by the competent authority. Secondly, in para 35 of the said judgment certain guidelines were laid down and certain directions were given to the concerned authorities. From the evidence, it can be seen that none of these guidelines have been followed. In the said paragraph, it has been stated that the authority should maintain certain records viz. (a) the intercepted communications, (b) the extent to which the material is disclosed, (c) the number of persons and their identity to whom any of the material is 19 disclosed, (d) the extent to which the material is copied, and (e) the number of copies made of any of the material. In the present case, except clause (a), the other record has not been maintained by the authority. Further, in clause 9 of para 35, it is laid down that there shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Committee is supposed to investigate whether the order under section 5(2) of the Act was a proper order or not. This procedure also has not been followed. Further, it can be seen from the cross-examination of P.W.5 that he has admitted that he had not maintained any data or record of log-book about the interception. The sanctioning authority has not been examined by the prosecution. Thus the ratio of the Judgment in the PUCL case (supra) so also in the cases of State of Maharashtra Vs. Jaisingh Vadhusingh in Criminal Appeal No.1262 of 2002 and Bharat Shantilal Shah & Others Vs. State of Maharashtra reported in 2003 Bom.C.R. [Cri.] 947 is squarely applicable to the facts of the present case. The said record and phone conversation cannot be taken into consideration. Since, this is the only piece of evidence for associating the accused with the Organized Crime 20 Syndicate, the conviction under the MCOC Act is quashed and set aside. 10. The accused no.1 Tabassum Khan is also charged u/s.307 of the IPC. The evidence against her is given by PW no.1 Aziz Gulab Malik and Pw no.26 Santosh Shirke. PW no.1 in his evidence has stated that on the date of the incident i.e. 10.11.1999, he had gone to the restaurant at about 6.00 p.m. He had gone to answer call of nature at about 10 to 10.30 p.m. The public urinal however was closed. He therefore, went near a secluded place near a telephone booth for urinating. At that time, he felt that an electric current had passed through his body and he fell down.