1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4319 OF 2004 Dilip Kamat .. Applicant Versus State of Maharashtra & Ors. .. Respondents. Applicant in person. Mr.Raja Thakare with Mr.Chimalkar for respondents Mr.S.D.Shinde, A.P.P. for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 30th January 2006. P.C. . This is an application for bail. It invokes section 21(4) of Maharashtra Control of 2 Organised Crime Act, 1999. (MCOCA for short). Applicant is original accused No.44 in C.R.No.135 of 2002 registered with Bundgarden Police Station, Pune for offences punishable under sections 120-B, 256, 257, 258, 259, 263(A), 467, 468, 471, 472, 473, 474, 475, 476, read with 34, 109, 216, 218, 221, 403 of I.P.C., read with 3(1)(11), 3(2), 3(4), 3(5), 4, 24 of MCOCA read with 63(b) Bombay Stamp Act, read with 13(1)(d) of Prevention of Corruption Act. This C.R. has led to registration of Special Case No.2 of 2003 before the Special Judge under MCOCA at Pune. 2. Applicant applied for bail by instituting criminal application No.15 of 2003 before the Special Judge which has been rejected vide order dated 9th October 2003. The present application is filed requesting this Court to release the applicant on bail in the aforesaid special case. 3. Applicant has argued his case in person. 3 Mr.Raja Thakre represented respondents. 4. Section 21(4) of MCOCA reads thus:- "21(1) ...... "21(2) ...... "21(3) ...... "21(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 4 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." It is in the backdrop of this legal provision that the present application will have be considered, since the belief and satisfaction of this Court envisaged by section 21 is of the above nature viz., whether the applicant is guilty of offences punishable under MCOCA or not and whether he is likely to commit any offence while on bail. It is therefore, necessary to set out facts and submissions in somewhat details. 5. Prosecution case is that the aforesaid C.R. was registered on a complaint lodged by Police Inspector of Bundgarden police station on 5 7th June 2002. Complaint followed interception of an Indica car bearing Registration No.MH-04-AY-200 near Pune Railway Station. Interception had led to recovery of fake stamps worth Rs.2,98,692/- from the car. Names and other details of its occupants are set out in the charge sheet. Investigation of this case was conducted by P.I. Prakash Deshmukh of Bundgarden police station. It is further alleged that three persons came to be arrested and against them C.R.No.135 of 2002 was registered for offences punishable as alleged. Initially officers of Bundgarden Police station started investigation on the basis of F.I.R. lodged as above. However, subsequently, this investigation was transferred to Special Investigation Team (SIT) and during the course of the same, applicant came to be arrested. 6. As far as the allegations against present applicant are concerned, they are that, main 6 accused (Kingpin - Abdul Karim latsaab Telgi) and the members of the organised crime syndicate had indulged in acts of violence, intimidation and coercion and other unlawful means for pecuniary benefits or other advantages to Kingpin and members of his organised crime syndicate. It is alleged that one Christopher, a member of the organised crime syndicate, working at Chennai office was done to death at Mumbai over financial disputes of the organised crime syndicate. It is alleged that while continuing these unlawful activities, it was also necessary to ensure that the Organised Crime Syndicate was given the necessary protection and immunity from legal punishment and with that objective in mind AKL Telgi (A-23) developed contacts with politicians and public servants and went to the extent of sharing the booty from out of the ill-gotten gains of the Organised Crime Syndicate. 7. During the period Telgi was in Central 7 Prison, Bangalore, the present case came to be detected and registered. The members of his Organised Crime Syndicate tried to sabotage the investigation, which is evident by the fact that Manoj Ramesh Mehta (A-43) was camping in Pune in Hotel Pride on 7th June 2002 and Telgi had sent Rs.5 lakhs through Tabrez Ahmed Abdul Rahim Telgi (A-64) to Manoj Ramesh Mehta who was the mediator and who had even on previous occasions acted as such. Though the case came to be registered on 7th June 2002, with a view to sabotage the investigation an officer closely associated with the investigation viz., ACP Mohd. Chand Mulani (A-61) was subverted through Abdul Rashid S Kulkarni (A-49), and was paid an amount of Rs.15 lakhs as illegal gratification. Similarly, huge amounts were paid to scuttle the investigation in Mumbai cases against the members of the Organised Crime Syndicate through Dilip P. Kamath (A-14), applicant, as elaborated in the charge sheet. Also in a case registered in the year 1999 at 8 P.S. Meera Road, Vide C.R.No.274 of 99 an amount of Rs.50,000/- was paid through Pratap Kakade (since deceased) to subvert the police officers and scuttle the investigation and though the investigating team could discover the printing press from where the counterfeit Govt.Stamps and Stamp Papers were being printed it did not take any measures to seize or seal the press. Similarly, on 20th May 2002 an amount of Rs.15 lakhs was arranged to be paid through Kadarsha Mohd.Singoti (A-8) by Telgi to Vashishta Rambhau Andhale for ensuring that no legal action whatsoever is initiated against the members of the organised crime syndicate, who had infact been found with Counterfeit Govt.Stamps and Stamp Papers. 8. As a part of conspiracy, Mohd.Chand Mulani was not promptly neutralised, coupled with interrogation of Telgi A-23 to the exclusion of other senior officers of Pune police. This is 9 the basis of the charge against the superior officials including Mr.R.S.Sharma. Mr.R.S.Sharma, took charge as Commissioner of police, Mumbai in January 2003 with full knowledge of the immense activities of the Organised Crime Syndicate of Telgi. His failure to ensure immediate neutralisation of Dilip Kamath, an officer closely associated with the investigation of various cases against Telgi and the members of the Organised Crime Syndicate even after the input received from S.K.Jaiswal DIG Pune and ADG Srikumar of STAMPIT, Bangalore, points towards his subversion by the organised crime syndicate, as his actions exhibit the help and support to the Organised Crime Syndicate rendered by Ranjitsingh Brahmajitsingh Sharma through Dilip Pandurang Kamath for ensuring the continuing unlawful activities. 9. The participation of S.S.Wagal, the then Jt.C.P. (Crime) Mumbai in rendering help and 10 support to the organised crime syndicate of Telgi through the active abatement of other officers like the then D.C.P. Pradeep Sawant, the then Sr.P.I.Dattatray Dal, through API Dilip Pandurang Kamat has well surfaced during the course of investigation in as much as 7 cases relating to counterfeit Government stamps and stamp papers were directed to be transferred to crime branch Unit V Dharavi through Pradeep Sawant where Dattatray Dal was the Senior P.I. and Dilip Pandurang Kamath who was virtually a member of the organised crime syndicate of Telgi was actually handling his custody. From time to time huge amounts were collected by Dilip Kamath from the members of the organised crime syndicate and evidence has also been collected to show the payment thereof to Shridhar Wagal. The aforementioned officers were also parties to the criminal conspiracy of rendering help and support to the organised crime syndicate of Telgi and saving him from legal punishment. With the said 11 objective they falsified the official records and though there was a haul of 830 Crores worth counterfeit Govt. Stamps and Stamp papers, which were having the same origin as that of the present case and which were recovered at the instance of Telgi on 11th/12th January 2003 from Vanmala Compound godown at Bhiwandi, the said recovery was however shown at the instance of Shabbir Ahmed Mushtaq Ahmed Shaikh and that too in C.R.No.73 of 2002, which was a non Telgi gang viz., Nandesh Kadwadkar Gang as elaborated in the charge sheet. 10. The case, in respect of C.R.No.73 of 2002 of Unit V Dharavi, was lodged right since inception with deliberate motives. The initial seizure was of counterfeit Govt.Stamps and Stamp Papers of the Nandesh Kadwadkar Gang which to the knowledge of the crime branch was unconnected with the organised crime syndicate of Telgi, yet, when the seizure at Hyderabad of counterfeit 12 Govt.Stamps and Stamp Papers was made from the rebel members of the organised crime syndicate, with due deliberation, the seizure was dumped in this C.R. as if it was a part of this case, to the knowledge of both Pradeep Balchandra Sawant and Shridhar Wagal. The fact about this knowledge is evident from the press note dated 4th September 2002 issued by Pradeep Sawant and recovered from the personal diary of Shridhar Wagal. When viewed from this background, the basis on which the seizure of Rs.830 Crores worth of Counterfeit Govt.Stamps and Stamp papers was clubbed together with this C.R. is not at all comprehensible and the only possible conclusion which can be drawn is that the intention was to sabotage the case itself, so that the continuing unlawful activities of the organised crime syndicate can go on unabatedly. The report of the expert of ISP, Nashik evidences that the samples of the Counterfeit Govt.Stamps and Stamp papers from the seizure at Hyderabad matched with 13 the samples of the seizure at Bhiwandi and incidently both these samples match with the samples in the present case, whilst the samples of the initial seizure from Nandesh Kadwadkar Gang do not in any way match with both these seizures. 11. During the period that Telgi was in custody of Unit -V Dharavi after being brought from Central Prison Bangalore all the facilities were provided to him with the active abatement and connivance of aforementioned police officers to obtain mobile phones through witness Kiran Thakker and such mobile phones and SIM cards could be identified during the investigation to have been acquired by Telgi for his own use and the use of the members of the organised crime syndicate. Thus, Telgi was provided the facility of free communication with the other members of the organised crime syndicate so that the continuing unlawful activities could flourish 14 unabated even during the time that he was in police custody. This facility was provided despite the fact that a case had been registered at the Madiwala P.S. Bangalore vide C.R.No.1100 of 2002 when Telgi was apprehended freely communicating over the mobile phones from the Central prison Bangalore with the active aid and assistance of the Jail authorities, who are also co-accused in the said case. 12. Thus, for all practical purposes relating to the present case, it is evident that the kingpin Telgi entered into criminal conspiracy at Pune, Mumbai and adjoining areas in the State of Maharashtra and even extended to other states viz., Karnataka, Andhra Pradesh, New Delhi etc. to commit various illegal acts with the members of the organised crime syndicate from the year 1994 and continued his activities inspite of registration of various cases and even after his arrest the activities continued atleast till 15 January 2003. 13. It is further alleged that applicant, A.P.I. posted at Crime Branch Dharavi Unit V, Mumbai being a public servant, rendered help or support in the commission of organised crime as defined in clause 2(c) of MCOCA, inasmuch as these unlawful activities of the organised crime syndicate were continuing but applicant deliberately abstained from taking lawful measures against them. In the application itself, applicant has set out the allegations against him as not just abstinence from taking lawful measures but also being part of the organised crime syndicate. 14. Further, applicant’s role is that while posted as above, he prepared record of investigation in such a manner which he knew to be incorrect and which would likely save the accused persons and other members of the 16 syndicate from legal punishment and hence committed offence under section 218 of I.P.C. 15. It is alleged that various acts of omission and commission were committed by applicant inasmuch as in a case registered against one Tabrej Rahim Telgi and Jamir Gulab Samadi vide C.R.No.78 of 1998 at Crime Branch Mumbai in which investigations were carried on by the applicant under the supervision of his superiors and when seizure of counterfeit Government stamps worth Rs.3,27,150/- made therein, he wilfully and intentionally did not complete the same but diverted the track towards one non existing person viz., Murugan. This, despite, the statement recorded of one Samadi during the course of investigation that counterfeit Government stamps and stamp papers seized in the case were stored at Shalimar Complex, Colaba, Mumbai in the office of Metro Corporation owned by Abdul Karim Telgi. 17 Applicant made no efforts of whatsoever nature in this direction and this deliberate omission was to protect Telgi. 16. It is also alleged that the said Telgi established contacts with applicant to such an extent that although, he was wanted offender in several cases registered at various police stations, applicant wilfully and intentionally knowing the complicity of Telgi therein, did not take any legal action against him. Applicant has also assisted Telgi by recording the statement of one Madhav Devadiga and thereafter allowed him to go free. In other words, instead of conducting proper and logical investigations and recording statements in pursuance thereof, applicant recorded statement of Devadiga in a manner, dictated by said Telgi. Applicant was aware of Telgi’s activities in December 1998 but failed to take lawful action against him. It is also alleged that when the case at Bundgarden police 18 station was registered, applicant became aware of the arrest of Telgi by Bangalore police station in November 2001 and also his involvement in the murder case investigated by crime branch, yet, the applicant decided to take advantage and establish contact with Telgi and one Abdul Rashid Kulkarni, Advocate of Telgi on 21st July 2002. Both applicant and Advocate Kulkarni travelled to Bangalore by Air where they were joined by one Kishore Dhingra. The said Dhingra is informant of present applicant. All three of them unauthorisedly met Telgi at Central Prison and secret discussion was held with him. Further allegation is that on 28th July 2002 the applicant along with Kishor Dhingra went to Bangalore and stayed at Hotel Monarch and on the same day, they met Telgi, who gave certain information regarding stock of counterfeit stamp in the possession of one Raees Khan at Hyderabad. 17. It is further alleged that on 29th July 19 2002, as a part of the criminal conspiracy, the applicant went to Hyderabad from Bangalore and stayed at Hotel Golkonda. On the same day, the applicant telephonically contacted Unit In Charge of Crime Branch, Dharavi Unit Mumbai and requested to send some more staff at Hyderabad. Accordingly, on 29th July 2002, one officer and a constable were sent to Hyderabad from Mumbai by Air and joined the applicant and also three head constables of the same unit were sent to Hyderabad by Bus. 18. It is also alleged that the applicant contacted Abdul Wahid Abdul Karim Patvegar at Hyderabad with a view to trace Raees Khan, who could not be found. However, one Sayyad Hamid Habib Sayyad, who was a friend of Raees Khan was traced. This said Sayyad Hamid led the above police party to the residence of Raees Khan at Banjara Hills, Hyderabad. When they conducted the search at his place, they found ten bags of 20 counterfeit stamps and stamp papers, which were seized. Thereafter the said Sayyad Hamid, applicant and Kishor Dhingra who acted as panch witnesses, returned to Mumbai by Air from Hyderabad. It is further alleged that incorrect records were framed in this regard. 19. It is alleged that the applicant and Kishor Dhingra while reaching Mumbai met other officers and staff at Vashi toll naka and out of the said 10 bags, took charge of four bags containing counterfeit Government stamps and Stamp papers of higher denomination and kept in their car. The remaining six bags were sent to Crime branch, Dharavi Unit. It is further alleged that the applicant prepared a panchanama showing that the said six bags containing counterfeit stamps worth Rs.3,67,78,567/- have been seized. It is further alleged that the applicant took charge of other four bags, which stamp papers and stamps are believed to be 21 destroyed or sold in the market. 20. It is then alleged that on 30th July 2002, applicant arrested one Sayed Habib Hamid Sayed, who had been brought from Hyderabad in C.R.No.73 of 2002 and obtained his police custody remand. During this period, applicant took Sayed unauthorisedly to Hyderabad on 8th August 2002 accompanied by informant and one head constable and stayed together with them at Hotel Golkonda at Hyderabad. Applicant accepted illegal gratification of Rs.8.30 lakhs from wife of said Sayed with a promise of not taking further lawful measures against him. Similarly, applicant along with said Kishore Dhingra and two head constables unauthorisedly went to Hyderabad by Air to trace another accused Raees Khan and stayed at a Hotel. Said Raees Khan was traced on 27th October 2002 and the applicant along with said Dhingra and two head constables returned to Mumbai by Air. Ticket for Raees Khan was purchased in fictitious 22 name of Salim. 21. On 27th October 2002, prime accused Abdul Karim Telgi was brought to Mumbai by Bangalore Jail authorities for production before local court at Mumbai. It is alleged that applicant and Kishore Dhingra received Telgi and Escort party at V.T. Station and brought them to Hotel Raj Hans at Chambur. Hotel premises were booked by Kishore Dhingra on 28th October 2002. Applicant then released Raees Khan after directing him to bring Rs.7 lakhs as illegal gratification. Amount was actually accepted by applicant in instalments. Because of this payment he avoided arrest of Raees Khan and set him free. Thus, by avoiding taking lawful action, applicant abused his post as public servant. Said Raees Khan is now absconding. 22. C.R.No.382 of 1995 was registered at Cuffe Parade police station and investigation was 23 handed over to the applicant. On 25th November 2002, applicant arrested Abdul Karim Telgi and after completion of police custody remand the said accused applied for bail before Magistrate. Although notice was issued of this application and the applicant was directed to produce case diary on 11th December 2002, neither the said diary was produced nor did the applicant as I.O. remained present before the Court. It was not brought to the notice of the court that Abdul Karim Telgi was proclaimed offender in some cases from 1996. Evidence collected during the course of investigation was not placed for consideration of the court while the court considered bail application of Telgi. Thus, applicant facilitated accused Telgi in getting bail in this case. 23. A serious allegation against the applicant is that on 9th January 2003 when the Additional Director General of Police, Bangalore 24 along with S.I.T. officer, D.I.G. Jaiswal and other officers of the SIT visited residence of Telgi at Mumbai they were surprised to find Telgi there along with three policemen of crime branch Mumbai. All signs of regular habitation were noticed at the said place. The team forwarded its report to the concerned authorities of Mumbai Police. To cover up his misdeeds, on 11th January 2003, applicant and unit in charge of crime branch Dattatray Dal, at the instance of Telgi called one Maqsood and Sirajuddin Nasipudi and along with them they visited a godown at Vanmala compound at Bhivandi. These persons pointed out the said godown containing counterfeit stamps and stamp papers worth more than Rs.8 crores. Prompt recovery was done for protecting applicant from departmental enquiry arising out of report of D.I.G., S.I.T. dated 10th January 2003. Although such seizure was made of the counterfeit stamps as above, applicant and the said Dal deliberately and 25 intentionally, in order to save prime accused Telgi from the case and to shield members of the organised crime syndicate showed seizure at the instance of Shabir Shaikh. Story narrated in the panchanama is by recording the statement of the said Shaikh to this effect that the stamp selling business was between him and Ram Ratan Soni. Applicant made station diary arrest of Shabir Shaikh on 12th January 2003 in C.R.73 of 2002, which was being investigated by some other officer. Applicant is also charged with preparing fabricated panchanama of the seizure on 12th January 2003, which is signed by him, although superior officer Mr.Dal was present during the course of seizure. 24. It is alleged that applicant received a total amount of Rs.96.5 lakhs as illegal gratification, which sum is other than his legal remuneration and obtained from the said Telgi and his organised crime syndicate. Applicant has 26 thus abused his position as public servant by corrupt or illegal means. Applicant is also charged with receiving further sums of Rs.33 lakhs and of also misappropriating to himself an amount of Rs.1.50 lakhs recovered allegedly during the course of investigation. 25. Applicant is thus charged with helping and assisting the said Telgi and his organised crime syndicate. Although, Telgi was in police custody of crime branch from 28th October 2002 to 21st January 2003 he was never physically kept in police lock up but lodged at hotel Ashray at Sion, Mumbai and at his residence at Cuffe Parade Mumbai. The said accused was using mobile phone and his unlawful activities continued. Applicant has also assisted the said Telgi in disposing of the chemical plant situate at Turbhe. 26. Applicant has also assisted Telgi by taking him to his native place on 12th November 27 2002 by road. They stayed at Belgaum and Goa by giving fictitious names. Applicant along with his family members were lodged at Hotel Leela, a five Star hotel at Goa from 14th to 15th November 2002 and bills amounting to Rs.52,600/- were paid by said Telgi. Thereafter, applicant along with Telgi travelled to Mumbai by Jet Air and airtickets were obtained from amounts paid by Telgi. It is alleged that applicant along with others have spent almost Rs.2 lakhs on air fares from July to November 2002, which have been allegedly paid by organised crime syndicate. 27. One Khalid Abdul Sattar was arrested by Dharavi crime branch. From one handwritten notebook seized from him, there is an entry of payment of Rs.50,000/- by Telgi to applicant on 4th April 2002 as illegal gratification for protecting crime syndicate and its members from legal action. 28 28. On the above allegations, applicant came to be arrested on 13th June 2003. He was produced before the Special Judge, Pune and initially remanded to police custody and now stands remanded to judicial custody. 29. Applicant appearing in person urges that it is inconceivable that he met prime accused Telgi in Bangalore Jail on 21st and 28th July 2002. He states that duty chart maintained at Dharavi crime branch shows that on the relevant dates applicant was in Mumbai. He states that this fact is known to investigating machinery and therefore in the supplementary charge sheet filed on 29th December 2003, there is an improvement in the allegation. However, for the purpose of evidentiary value, station diary and case diary stands on higher footing and in that behalf, he places reliance upon section 35 of the Evidence Act. He states that oral statements of witnesses recorded during the Course of investigation by 29 SIT cannot substitute entries in the station diary. These statements have no evidentiary value. As far as