1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 65 OF 2009 Mr. Madhu Kuttappan Kottiyatil @ Madhu Kutty ..... Applicant. V/s The State of Maharashtra (At the instance of DCB, CID Kandivali Unit) ...... Respondent. ----- Mr. S.R. Chitnis, Senior Counsel i/b Mr. Pankaj D. Kavale for the applicant. Mr. S.R. Borulkar, Public Prosecutor with Mr. Rajesh More, APP for the State. ----- CORAM : V.M. KANADE, J. DATE : 5th February, 2009 P.C.:- 1. Heard. 2. This is an application for bail. Applicant is an accused No.2 in MCOC Special Case No. 21 of 2005 and 21A of 2005 arising out of LAC No. 25 of 2005 registered at Kandivali Police Station on 21/05/2005. 2 3. The police, on 21/05/2005, on the basis of information received, apprehended one Mukund Kanhhayalal Patel – accused No.1. During his personal search, he was found in possession of a revolver and two live cartridges which were seized by the police under panchanama. Upon interrogation, he informed the police that he was working for Bharat Nepali who was affiliated to gangster Chotta Rajan and had imported one container from Bangkok containing grease, in which arms and ammunitions have been concealed. Accordingly, the police reach the Trans India Logistics Park, JNPT area and seized 34 revolvers, 3 pistols, 1 silencer and 1283 live cartridges. During interrogation, he revealed that the accused No.2 i.e the present applicant had played a vital role in conspiring, aiding and abetting the said offence committed by accused No.1. Accordingly, the present applicant was arrested on 29/05/2005 who disclosed the name of accused No.3 – Yeshwant Yewale who was also arrested on 01/06/2005. 4. An application was made for invoking the provisions of MCOC Act, 1999 and the prior approval was granted under section 23(1)(a) of the MCOC Act and the sanction was granted on 19/09/2005. Charge-sheet was filed on 20/09/2005. The bail application filed by 3 the applicant before the Special Court was rejected on 19/10/2005. Thereafter this present application has been filed. 5. Mr. Chinis, the learned Senior Counsel appearing on behalf of the applicant submitted that the approval and sanction accorded by the police officers under section 23 of the MCOC Act, clearly showed the non-application of mind since it did not disclose any facts which constitute the offence of “organised crime” as defined under the Act. It is therefore submitted that the approval and sanction was not in conformity with the ratio of the judgment of the Privy Council in the case of Gokulchand Dwarkadas Morarka vs. The King reported in 1948 BLR 399 and it was also contrary to the ratio of the judgment of the Apex Court in the case of State of Maharashtra vs. Lalit Nagpal & Anr reported in (2007) 4 SCC 171. The learned Senior Counsel appearing on behalf of the applicant has also relied upon the following judgments :- Sr.No. NAME OF THE PARTIES CITATIONS 1. Jaswant Singh V/s State of Punjab AIR 1958 SC 124 2. Dilwar Singh V/s Parvinder Singh @ Iqbal Singh and anr. (2005) 12 SCC 709 3. Sherbahadur Akram Khan and Ors. V/s State of Maharashtra 2007(1) Bom.C.R. (Cri) 26. 4 4. Anirudhsinhji Karansinhji Jadeja and anr. V/s State of Gujarat (1995) 5 SCC 302 5. Rambhai Nathabhai Gadhvi and ors V/s State of Gujarat (1997) 7 SCC 744 6. The learned Senior Counsel appearing on behalf of the applicant, particularly laid emphasis on the judgment in the case of Sherbahadur Akram Khan (supra) and in the case of Anirudhsinhji Karansinhji Jadeja (supra) and submitted that facts in the said case were identical to the facts in the present case and, in view of the ratio laid down in the said cases, the applicant is entitled to be released on bail. He also relied on the judgment in the case of Rambhai Nathabhai Gadhvi (supra) and more particularly on para 8 of the said judgment wherein the Apex Court has held that the sanction which was granted was qua the offender and not the offence and that if the the Designated Court has taken cognizance of the offence without a valid sanction, such action is without jurisdiction and any proceedings adopted thereunder will also be without jurisdiction. 7. Mr. Borulkar, the learned Public Prosecutor appearing on behalf of the State has also relied upon the following judgments. 5 Sr.No. NAME OF THE PARTIES CITATIONS 1. State of West Bengal V/s Mohammed Khalid and Ors. AIR 1995 SC 785 2. Jaywant Dattatraya Suryarao V/s State of Maharashtra (2001) 10 SC 109 3. Pradip Madgaonkar @ Bandya Mama V/s State of Maharashtra And Vinod G. Asrani V/s State of Maharashtra Criminal Writ Petition No.988 of 2006 Criminal Writ Petition No.1043 of 2006 4. Vinod G. Asrani V/s State of Maharashtra 2007(1) Bom.C.R. (Cri) 869 5. Anil Sadashiv Nanduskar V/s State of Maharashtra Criminal Appeal No.536 of 2007 The learned Public Prosecutor submitted that the same arguments were made on behalf of the accused before the Division Bench of this Court in Criminal Appeal No. 536 of 2007 and the Division Bench of this Court (Coram: Sri R.M.S. Khandeparkar & Sri A.A. Sayed JJ.) by judgment dated 23rd November, 2007 has dispelled all the submissions which were made by the learned Senior Counsel appearing on behalf of the accused in the said case. He submitted that Mr. Chitnis, the learned Senior Counsel who is appearing in the present case also had appeared on behalf of the accused in the said case and had relied upon the very same judgments which are relied in this case and the Division Bench by a reasoned judgment, rejected the submissions made by the learned Senior Counsel appearing on behalf 6 of the accused. He submitted that ratio of the said judgment of the Division Bench in the case of Anil Sadashiv Nanduskar vs. The State of Maharashtra in Criminal Appeal No.536 of 2007 would squarely apply to the facts of the present case. 8. I have heard both the Counsel at length and I have given my anxious consideration to the submissions made by the Counsel appearing on behalf of either side. 9. The submissions made by the learned Senior Counsel appearing on behalf of the applicant cannot be accepted. Section 23 of the MCOC Act reads as under:- “23. Cognizance of, and investigation into, an offence.- (1) Notwithstanding anything contained in the Code,- (a) no information about the commission of an offence of organised crime under this Act, shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police; (b) no investigation of an offence under the 7 provisions of this Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police. (2) No special Court shall take cognizance of any offence under this Act without the previous sanction of the police officer not below the rank of Additional Director General of Police.” Perusal of the aforesaid section clearly discloses that the authority granting prior approval has to arrive at a subjective satisfaction on the basis of material which is placed before him that there is sufficient material to make investigation and upon such subjective satisfaction, prior approval is granted. The question whether the material was sufficient or not can be ascertained only after the evidence is led by the prosecution at the time of trial and the Counsel for the accused cross-examines the sanctioning authority or the authority granting the approval and, thereafter, the Court can record its finding as to whether there was proper application of mind or not. At this stage, therefore, the Court cannot record a finding as to whether material which was placed before the sanctioning authority had been considered by the said authority while granting prior approval or granting sanction and whether there was application of mind. The 8 order of sanction, therefore, need not, in terms, set out the role played by the individual accused when prior approval is granted under section 23(1)(a). During the course of investigation, it is possible that some more material may be unearthed by the Investigating Agency. It is possible therefore that while granting prior approval under section 23(1)(a), names of some of the accused may not be mentioned or their specific role may not have been disclosed to the Investigating Agency and hence only some material may be available on the basis of which the Joint Commissioner of Police has arrived at a conclusion that it was necessary to give prior approval under the said provision. Similarly, sanction to prosecute could be granted under section 23(1)(a) on the basis of material which is placed before the competent authority on being satisfied that there is some sufficient material to proceed against the accused under the MCOC Act, 1999. All the judgments on which reliance has been placed by the learned Senior Counsel for the applicant have been elaborately considered by the Division Bench of this Court in the case of Anil Sadashiv Nanduskar (supra) after dispelling the submissions made by the learned Counsel appearing on behalf of the applicant. The ratio of the judgment in the case of Anil Sadashiv Nanduskar in Criminal Appeal No. 536 of 2007 would, therefore, squarely apply to 9 the facts of the present case. 10. Reliance has been placed by the learned Senior Counsel appearing on behalf of the applicant on the judgment in the case of Gokulchand Dwarkadas Morarka (supra) and more particularly upon the following observations made in the said judgment:- “ Upon this state of the evidence the respondent has argued that the view which has been prevailed in the High Court of Bombay is wrong, and that a sanction which names the person to be prosecuted and specifies the provision of the Order which he is alleged to have contravened is a sufficient compliance with cl. 23 of the said Order. In their Lordships' view, in order to comply with the provisions of cl. 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since cl. 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face 10 of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority.” The ratio of the said judgment cannot apply to the facts of the present case. This question would arise only at the final hearing of the case when evidence would be led by the prosecution. At this stage we are on the question of granting bail and, therefore, Investigating Agency is not required to prove those facts before this Court. 11. The learned Senior Counsel also relied upon the judgment of the Apex Court in the case of Jaswant Singh (supra) and more particularly on the observations made by the Apex Court in para 4 wherein it has been held that in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. There cannot be any doubt regarding the said proposition laid down by the apex court. Perusal of the sanction given in this case clearly indicates that there has been prima facie application of mind by the sanctioning authority to the facts and circumstances of the case while granting sanction. The learned Senior Counsel also relied upon para 5 of the said 11 judgment and submitted that a person could be prosecuted only in respect of sanction which was given and the prosecution could not proceed against the accused in respect of the offences for which no sanction was given. In the said case sanction was granted by the sanctioning authority to prosecute the accused for the offence punishable under section 5(1)(d) of the Prevention of Corruption Act, 1947 for receiving Rs 50/- as illegal gratification from one Pal Singh. The Special Judge, however, framed charge against the accused only for accepting the bribe of Rs 50/- under section 5(1)(d) but an additional charge under section 5(1)(a) of the said Act for habitually accepting bribe was also framed and in the light of the said framing of charge under section 5(1)(a), the Apex Court has observed that it was not permissible for the Special Judge to frame the charge for the additional offence for which the sanction was not given. In my humble view, the ratio of the said judgment cannot apply to the facts of the present case. 12. The learned Senior Counsel appearing on behalf of the applicant also relied upon the judgment in the case of Rambhai Nathabhai Gahdvi (supra). In the said case, sanction was granted by DGP on the strength of the FIR and the letter sanctioning permission, 12 narrating the facts of the case. No document was sent to DGP and the DGP also did not call for any document for his perusal. Under these circumstances, the Apex Court has held that the sanction was vitiated on the ground of non-application of mind. In the said case, the sanctioning authority had granted sanction to the designated court to take cognizance of the offence. The Apex Court, in the light of the facts of the said case, came to the conclusion that the sanction had been granted qua the offender and not the offence and therefore the sanction was not valid and if the sanction was not valid the designated court did not have jurisdiction and any proceedings adopted thereunder would also be without jurisdiction. In my view the ratio of the said judgment will not apply to the facts of the present case. The sanctioning authority, in this case, has very specifically named the present applicant as accused No.2 for the said offence and the sanction has been granted to prosecute the said accused No.2, the applicant herein. 13. Mr. Chitnis, the learned Senior Counsel appearing on behalf of the applicant, has also relied upon the judgment in the case of Anirudhsinhji Karansinhji Jadeja (supra). In the said case, a specific point was raised before the Apex Court that the prior approval as 13 required under section 20-A(1) of TADA was not taken and in the light of the said submission, the Apex Court made the following observations in para 15 of the said judgment, which read as under:- “ 15. The aforesaid is however not all. Even if it be accepted that as an additional safeguard against arbitrary exercise of the drastic provisions, the State Government had provided by administrative instructions as additional safeguard whereunder the DSP was required to obtain the sanction/consent of the State Government, we are of the view that in the present case the same was given by the State Government without proper application of mind. We have taken this view because the sanction/consent was given by the Government merely on the basis of the fax message dated 17-3-1995 of the DSP. The reason for our saying so is that though there is no record a fax message of Deputy Director General of Police also, which is dated 18-3-1995, the sanction/consent order has mentioned above the fax message of the DSP only. Now, no doubt the message of the DSP is quite exhaustive, as would appear from that message which has been quoted above in full, we are inclined to think that before agreeing to the use of harsh provisions of TADA against the appellants, the Government ought to have taken some steps to satisfy itself whether what had been stated by the DSP was 14 borne out by the records, which apparently had not been called for in the present case, as the sanction/consent was given post-haste on 18-3-1995 i.e., the very next day of the message of the DSP. It seems the DSP emphasised the political angle in the first two paragraphs of his message. The dispute or motive stated was that the Darbars were annoyed because they were refused loan and not because of any political rivalry. In the third paragraph there is reference to statements of accused after arrest which would ordinarily be inadmissible in evidence. Reference to avoid incident of the past does not provide any nexus. The State Government gave the sanction without even discussing the matter with the investigating officer and without assessing the situation independently. All these show lack of proper and due application of mind by the State Government while giving sanction/consent.” In my view, ratio of the said judgment will not apply to the facts of the present case. Here, admittedly, prior approval has been granted by the competent authority viz. Joint Commissioner of Police (Crime Branch) C.I.D. It cannot be said that prior approval was not granted by the competent authority as was the case in case of Anirudhsinhji Karansinhji Jadeja (supra). 15 14. In my view, there is no substance in the submissions made by the learned Counsel appearing on behalf of the applicant. Application for bail is rejected. (V.M. KANADE, J.)