1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4365 OF 2009 1. Uday Manohar Warekar, 2. Palraj Ganapati Thewar ...Applicants vs. The Senior Inspector of Police, DCB, CID, Unit No,IX & Ors. ...Respondent Mr.Rajendra S. Desai for the Applicants. Mrs.M.R. Tidake, APP for the State. CORAM : V.M. KANADE, J. DATED : NOVEMBER 10, 2009 P.C. :- 1 Heard the learned Counsel for the applicants and the learned APP for the State. 2 The present applicants were arrested on 3rd May, 2009 for the offence punishable under Section 440 read with 34 of the IPC and under Section 3(1) (c) of the Suppression of Unlawful Acts Against 2 Safety of Civil Aviation Act, 1982 vide C.R.No. 61/2009 registered with Airport Police Station, Mumbai and which was transferred to Unit-IX, DCB CID, Mumbai. Prosecution case in brief is as under :- 3 The applicants are working as Helpers with Air Works (I) Engineering Pvt.Ltd. which is engaged in maintaining the aircrafts which are kept in the hangars at Juhu and other places. On the date of the incident i.e. 23rd April, 2009, one Sudhakar Ranadhir Surve had stated in his FIR which was lodged before the Airport Police Station that at about 9 O Clock, one helicopter belonging to Reliance was parked outside the Air Works hangar on the eastern side at about 250 feet and the pilot was to take that aircraft to New Bombay and at about 4.45 p.m., the Director of the company one Sahadev Menon called him and informed him that in the helicopter which was parked outside, the two stones and gravel was found in the cambined gear box after the oil tank was 3 filled. According to him, he made enquiries and he learnt that one Bharat Borge and Ramshankar Chavan and the present applicants were present near the helicopter from 2.30 p.m. for the purpose of filling fuel and cleaning the helicopter and at about 4.15 p.m. after the work of cleaning the helicopter was over, these applicants went out of the hangar and Bharat Borge while reexamining helicopter noticed that the combined gear box tank cap was fitted in the opposite direction. He had, therefore, called one Shehabi Qureshi and brought this fact to his notice and when the said Qureshi and Bharat Borge opened the cap, they found 6-7 stones and some gravel inside that cap and they, thereafter, immediately informed this fact to the management. Therefore, initially a complaint was filed by the Sudhakar Surve under the provisions of Section 440 of the IPC. A statement of Bharat Borge was also recorded on the same day. Borge has stated that at the relevant time, apart from these two applicants, some persons had come for filling fuel in the said 4 tank of the helicopter and he and one Ramashankar Chavan were also present at the same time. In the first statement, however, he did not mention name of the present applicants as the persons suspected to have committed the offence. The offence thereafter was transferred to DCB CID, Crime Branch, Unit-IX and again the statement of Bharat Borge was recorded on 26th April, 2009. In this statement, he mentioned that there was some strife between the management and the workers and on earlier occasion, the present applicants were suspected to have burst crackers in the hangar where the aircraft was kept. He expressed his suspicion that the present applicants may also be involved in the commission of the said offence. One Anil Kotiyan s statement was recorded on 29 th April, 2009 in which he also stated that present applicants were near the helicopter at the relevant time and prior to fuel being put in the helicopter, he had cleaned some part of the helicopter and after fuel was put, again they had cleaned part of the helicopter. The said Kotiyan did not express any 5 doubt about the present applicants. 4 Shri Desai, the learned Counsel for the applicant invited my attention to the provisions of the said Suppression of Unlawful Acts Against Safety of Civil Aviation Act, 1982 and submitted that in view of the provisions of Section 6A, there was a restriction imposed on the court on granting bail to the applicants who are accused in the commission of the said offence and unless court was justified prima facie there was no material to show that the accused had committed an offence, the court could not grant bail to such accused. He, however, submitted that there was no material on record to show that the present applicants were in any manner involved in the said offence. He submitted that one of the witnesses only had expressed his suspicion that the present applicants may have committed the said offence since they were near the aircraft at that time. He submitted that unfortunate death of the witnesses who had given statements who were near 6 the aircraft viz. Shri Bharat Borge and Anil Kotiyan who were employed as Technicians prior to, soon after the statements were recorded, the dead body of Borge was found on the track under the mysterious circumstances and Anil Kotian also died soon thereafter on 24th August, 2009. He submitted that apart from the present applicants and Anil Kotiyan and several other persons were near the aircraft at the relevant time. He submitted that however, none of the other workers have been arrested. He has further submitted that as many as 52 helpers and about 250 persons were working in the Air Works (I) Engineering Pvt.Ltd. and on the date of the incident, apart from the present applicants, Shri Bharat Borge, Ahmed, Shailendra Parab and Waraprasad Nekati were checking the helicopter and when the mischief was noticed at about 2.30 p.m., apart from Bharat Borge, Ramashankar Chavan, technician, at least four persons came to refuel the helicopter. There is also no indication as to how many persons were there apart from three persons who were 7 involved in the refueling of the aircraft. It was, therefore, submitted that apart from the mere suspicion expressed by one of the witnesses, there was no material on record. No extra judicial confession has been recorded. No recovery has been made at the instance of the present applicants of the place where the said mud and stones were collected and brought by them. He further submitted that on two earlier occasions, FIR was lodged against the present applicants and they were arrested and later on, were released on bail whereas on two different dates, there was bursting of fire crackers in the hangars and on both the occasions, the police filed a report under Section 169 of the Cr.P.C. and the present applicants were discharged. He invited my attention to the order passed by the learned Magistrate on 7th July, 2009 in respect of the two applicants filed by the prosecution in respect of C.R.No.11/2009 for the offences punishable under Sections 436 and 511 of the IPC and CR No.3/2009. He submitted that the names of the 8 applicants, therefore, again taken merely on suspicion. 5 The learned APP appearing on behalf of the State, vehemently, opposed this application for grant of bail. She submitted that the Suppression of Unlawful Acts Against Safety of Civil Aviation Act, 1982 was passed in order to prevent any acts of sabotage which would put the passengers of aircraft and the aircraft itself in danger. She submitted that the applicants were persons who were found near the helicopter and the time when the said mud and gravel was found in the fuel cap. She submitted that, therefore, in view of the provisions of Section 6A of the Act, the applicants were not entitled to be released on bail. 6 In my view, there is much substance in the submission made by the learned Counsel for the applicant and the submission made by him will have to be accepted. Before taking into consideration the 9 material on record and facts and circumstances of this case, it is necessary to take into consideration the provisions of the said Act. The additional offence under Section 3(1)(c) of the said Act has been added to the existing offence of Section 441 of the IPC. The said section reads as under:- 3.Offence of committing violence on board an aircraft in flight, etc.- (1) Whoever unlawfully and intentionally- (a) commits an act of violence against a person on board an aircraft in flight which is likely to endanger the safety of such aircraft; or (b) destroys aircraft in service or causes damage to such aircraft in such a manner as to render it incapable of flight or which is likely to endanger its safety in flight; or (c) places or causes to be placed on an aircraft in service, by any means whatsoever, a device or substance which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight, or to cause damage to it which is likely to endanger its safety in flight; or (d) communicate such information which he 10 knows to be false so as to endanger the safety of an aircraft in flight, shall be punished with imprisonment for life and shall also be liable to fine. (2) Whoever attempts to commit, or abets the commission of, any offence under sub- section (1) shall also be deemed to be have committed such offence and shall be punished with the punishment provided for such offence. 7 Section 6A of the said Act also imposes the restriction on the grant of bail on the persons who are accused of having committed the said offence. Perusal of these two provisions reveals that Section 6A is identical to the provisions of MCOC Act and Section 37 of the NDPS Act. Therefore, before granting bail to such persons, a duty is cast on the court to examine the material on record and only if the court comes to the conclusion that the material is not sufficient to convict the accused, the court can direct the applicant to be released on bail. In my view, there is prima facie no material against the present applicants and only on the basis of 11 their presence near the aircraft, their names have been mentioned and suspicion had been expressed by one of the witnesses who unfortunately has died under mysterious circumstances. 8 It is an admitted position that at the relevant time, there were several persons near the aircraft. No recovery has been made at the instance of the present applicants. There is nothing on record to show the preparation of the commission of the said offence by the applicants. On two earlier occasions, the names of the applicants were taken in connection with the two incidents which had taken place where the firecrackers were burst in the hangar itself. Later on, however, these applicants were discharged by filing application under Section 169 of the Cr.P.C. The chain and sequence of events, therefore, indicates that apart from mere suspicion, there is no other material to indicate that the present applicants actually had taken part in the commission of the said offence. I am informed that 12 the management has terminated the services of other Helpers. The material, therefore, in my view, is not sufficient to convict the present applicants. The applicants, therefore, deserve to be released on bail. There are no other prior antecedents against the present applicants. They were working as Helpers in the said company. Uday Warekar was working for about 8 years and Palraj Thewar was working for about 22 years in the said company. The trial is not likely to begin immediately in the near future. The applicants are permanently residing in Mumbai. They have permanent residence in Mumbai. They are married and having their own family. They are not likely to abscond. Under these circumstances, the applicants are entitled to be released on bail. Prima facie, the material on record is not sufficient to convict them under provisions of Section 3(1)(c) of the said Act. 9 The applicants, therefore, be released on bail in the sum of Rs.5000/- each with one or two 13 sureties each in the like amount. They shall report to DCB CID, Mumbai, twice in a month. 10 The trial court, however, shall not be influenced by any observations made by this court while granting bail to the applicants as these observations are of a prima facie nature. 10 The application is disposed of. (V.M. KANADE, J.)