1 Appln 942-2011 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO.550 OF 2011 Khatib Imran Akhil Ahmed .Applicant Aged 27 years Residing at Dr. Zakir Hussain Chowk, Parli Vaijanath, District Beed, (Maharashtra State) V/s. State of Maharashtra .Respondent (At the instance of Anti Terrorist Squad, Mumbai vide LAC No.03/2006) WITH CRIMINAL BAIL APPLICATION NO.942 OF 2011 Mohd. Akil Mohd. Ismail Momin .Applicant Aged 30 years, Occu : business Resident of Beed, District Aurangabad V/s. State of Maharashtra .Respondent (Through ATS Police Station, Mumbai) WITH CRIMINAL BAIL APPLICATION NO.988 OF 2011 IN M.C.O.C SPL.CASE NO.16 OF 2006 Mohammad Muzaffar Mohammad Tanveer.Applicant Age : 28 years, Indian Inhabitant Occupation : Business/driver R/o.Daulat Gulshan Manzil, Jhoona Bazar, Aurangabad. V/s. The State of Maharashtra .Respondent (At the instance of Anti Terrorist Squad vide LAC No.03/2006) 2 Appln 942-2011 Mr.Sudeep Pasbola with Mr.Rahul Arote, Advocate, for the Applicant in Cri.Bail Appln.No.550 of 2011 Mr.Momin Solkar with Ms Tahera Qureshi, Advocate, for the Applicant in Cri.Bail Appln.No.942 of 2011 Mrs.Farhana Shah, Advocate, for the Applicant in Cri.Bail Appln.No.988 of 2011 Mr.Raja Thakare, Special Public Prosecutor with Mr.A.M.Chimalkar and Mrs.S.D.Shinde, for the State in all matters CORAM : R.C.CHAVAN, J. RESERVED ON : 30TH SEPTEMBER, 2011 PRONOUNCED ON : 21ST OCTOBER, 2011 Order . Heard the learned Counsel for the respective parties. 2. These three applications for bail by the applicants, who have been arrested and charge sheeted in what is popularly known as 'Aurangabad Arms Hauls Case' are being disposed of by this common order. Two of the three applicants had approached this Court in the past. The applicant Khatib Imran Akhil Ahmed's (hereinafter referred to as Imran ) 3 Appln 942-2011 Criminal Application No.1481 of 2007 came to be rejected by this Court by order dated 20 th September, 2007. Criminal Application No.454 of 2007 filed by Mohd. Akil Mohd. Ismail Momin (hereinafter referred to as Akil ) was allowed to be withdrawn on 27 th February, 2008 with liberty to apply afresh. Criminal Application No.306 of 2007 filed by applicant Mohammad Muzaffar Mohammad Tanveer (hereinafter referred to as Muzaffar ) was rejected by order dated 26 th July, 2007. 3. Facts which are material for deciding these applications are as under :- On 9 th May, 2006, the intelligence agency received intelligence that some explosives and weapons were likely to be transported in a vehicle to Marathwada and Khandesh regions. A team of Anti Terrorism Squad officers intercepted one white coloured Sumo motor jeep No.MH-14-X-4380 and asked the jeep to halt at Yevala Junction. The vehicle 4 Appln 942-2011 sped away. It was given a chase and was eventually stopped near Ghruneshwar Temple, Taluka Khultabad, District Aurangabad on Verul-Aurangabad road. Three occupants of the jeep got down and started running. One of the occupants of the jeep was caught on the spot and jeep was detained. The search of the jeep revealed that it was carrying ten cartons of computer cabinet servers which contained ten AK 47 rifles, 200 live rounds, 40 magazines, 30 Kgs of RDX and 10 pouches. Under an elaborate panchanama, the jeep, the arms and ammunitions were seized. FIR was registered by the Anti Terrorism Squad, Mumbai. 4. Further investigation revealed that several persons had started to revolt against the country in the name of 'Jihad'. A Tata Indica car bearing No.MH-20/U/1240 which had been used for carrying similar consignment of weapons and explosives was also seized. 16 persons including the present applicants were 5 Appln 942-2011 arrested. The applicant Imran was arrested on 7 th June, 2006 whereas applicant Akil was arrested on 29 th June, 2006. Applicant Muzaffar was arrested on 10 th May, 2006. Some of the accused persons had given their confessional statements. The names of the applicants Imran and Akil were revealed in confessional statements of accused No.11 Sayyed Aakif Sayyed Jafaruddin and accused No. 15 Abdul Samad alias Mohd. Samad Samsher Khan. The persons arrested have been charge sheeted and 6-7 persons are said to be still absconding. 5. The accused persons have been charge sheeted for the offences punishable under Section 120-B of the Indian Penal Code, Sections 4 and 5 of the Explosive Substances Act, Sections 5, 6, 9(B) of the Indian Explosive Act, Sections 3, 25 of the Indian Arms Act, Sections 10, 13, 16, 18 and 23 of Unlawful Activities (Prevention) Act and 6 Appln 942-2011 Sections 3(1)(iii), 3(2) and 3(4) of the Maharashtra Control of Organised Crime Act, 1999. 6. The learned Special Public Prosecutor submitted that in view of rejection of previous application for bail by two of the three applicants, these fresh applications cannot be entertained in the absence of any change in circumstances, in the light of observations of the Hon'ble Supreme Court in Judgment in KALYAN CHANDRA SARKAR Versus RAJESH RANJAN ALIAS PAPPU YADAV AND ANOTHER, reported at (2005) 2 Supreme Court Cases 42. 7. In KALYAN CHANDRA SARKAR the Court had observed that a person whose application for enlargement on bail was once rejected is not precluded from filing subsequent application, if there is a change in the factual situation. In such cases, if the circumstances then prevailing require that such persons be 7 Appln 942-2011 released on bail inspite of the earlier application being rejected, the Court can do so and change in circumstances was the limited area in which an accused, who has been denied bail earlier, can move the subsequent application. The Court then considered whether in the earlier proceeding the Court had given a finding in regard to the existence of a prima facie case against the respondents. Incidentally, on the question of binding precedent the observations of the Court in para 42 of the Judgment may be usefully reproduced as under :- 42. While deciding the cases on facts, more so in criminal cases the court should bear in mind that each case must rest on its own facts and the similarity of the facts in one case cannot be used to bear in mind the conclusion of fact in another case. (See Pandurang v. State of Hyderabad.) It is also a well-established principle that while considering the ratio laid down in one case, the court will have to bear in mind that every judgment must be read as applicable 8 Appln 942-2011 to the particular facts proved or assumed to be true since the generality of expressions which may be found therein are not intended to be expositions of the whole of the law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides, and not what logically follows from it. See: (1) Quinn v. Leathem, State of Orissa v. Sudhansu Sekhar Misra. (3) Ambica Quarry Works v. State of Gujarat. 8. The learned Counsel for the applicant Khatib Imran submitted that this Court, while disposing of the earlier application had observed that the applicant was a member of Ahl-e-Hadis, an organization which is banned by the Government of India. He submitted that there is nothing to show that Ahl-e-Hadis had been banned by the Government of India. The learned Special Public Prosecutor does not question the fact that Ahl-e-Hadis is not a banned organization. Therefore, according to 9 Appln 942-2011 the learned Counsel for the applicant, the information secured by the applicant that Ahl- e-Hadis is not a banned organization is a change in circumstances which warrants application being entertained. Since the previous order refers to this one circumstance about Ahl-e-Hadis being banned, it would be necessary to examine whether the order is passed on this one consideration or it is just one of the several circumstances which led to the rejection of the application. 9. Application of Akil had been simply allowed to be withdrawn and was not decided on merits. 10. I have, therefore, gone through the material produced to find out if irrespective of whether Ahl-e-Hadis was banned or not the complicity of the applicants Akil and Imran was indicated in the confessional statements of the co-accused, which cannot be ignored. I 10 Appln 942-2011 have also examined the material against applicant Muzaffar. 11. Before examining the material against each applicant it may be useful to refer to Judgment of the Supreme Court in RANJITSING BRAHMAJEETSING SHARMA Versus STATE OF MAHARASHTRA AND ANOTHER, reported at (2005)5Supreme Court Cases 294 cited by the Counsels for one of the applicants on the question of grant of bail in an offence under the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as 'MCOCA' Act). In paras 38 and 44 to 46 of the Judgment the Supreme Court observed as under :- 38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the court as regards his likelihood of not committing 11 Appln 942-2011 an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the manner which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of 12 Appln 942-2011 a public servant may attract disciplinary proceedings but may not attract a penal provision. 44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grnat of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must 13 Appln 942-2011 necesssarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. 45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub- section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any 14 Appln 942-2011 bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby. These principles which were followed in VASANTHI Versus STATE OF A.P., reported at (2005)5 Supreme Court Cases 132 and by this Court in Aatif Nasir Mulla Vs. State of Maharashtra, reported at 2006 ALL MR (Cri)338 would govern the question of entitlement of the applicants to bail. 12. In Aatif Nasir Mulla Vs. State of Maharashtra on the question of conspiracy the Court quoted from a Judgment of the Supreme Court to the effect that those who committed offences pursuant to a conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy. But, the non- participant conspirators cannot be found guilty of the offence or offences committed by 15 Appln 942-2011 the other conspirators and that there was hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. This would of course have to be dealt with at the trial. 13. With this prelude I would proceed to examine material against each of the three applicants. 14. As far as applicants Akil and Imran are concerned, their complicity is indicated in confessional statements of two co-accused. Co-accused Abdul Samad alias Mohammad Samad Samar Khan from Beed District had made a confessional statement before the Deputy Commissioner of police of Anti Terrorist Squad on 10 th June, 2006. In this statement, he had stated that he had come in contact with an organization known as Ahl-e-Hadis which ran a religious library. He had stated that the 16 Appln 942-2011 present applicant Akil and one Jakir met him in the Ahl-e-Hadis' library. Akil is also resident of District Beed. He stated that in the year 2002 Ijtama was held in Beed which he had attended. At that time Akil was also present. On 8 th May, 2006, he had gone to the shop of Akil. He states that there was a talk about Jihad amongst the persons, who had gathered. On 10 th May, 2006 he learnt of accused Amer being caught in the Sumo vehicle at Verul. He states that he was scared because he had been meeting Amer. He rang up the applicant Khatib Imran and called Khatib Imran to Masjid. He also received a telephone call from Akil and he was also called at Khatib Imran's room. Akil stated that they would have to leave Parali Vaijanath, since they could be arrested in Aurangabad Arms haul Case. Then Akil, Rajiuddin and Mohammad Samad Samar Khan went to Parali Vaijanath Railway Station on 22 nd May, 2006. Khatib Imran had come to see them off. They went to Nepal via 17 Appln 942-2011 Hyderabad, Bhopal, Jhansi and Gorakhapur. He asked Khatib Imran after reaching Nepal about situation in Beed. The applicant Akil is supposed to have also paid for the stay in Nepal. Thus, the account given by Samad shows close association with the two applicants Khatib Imran and Mohd. Akil. 15. Accused Sayyed Akif Sayyed Jafruddin also gave confessional statement on 13 th June, 2006. He states of his association with 'SIMI' (Students Islamic Movement of India)'s function and also talk about 'Jihad'. He states that in January, 2006 he met Khatib Imran at Aurangabad and was in contact with Khatib Imran. He used to tell Khatib Imran about Ahl-e-Hadis . He also states about co-accused Abdul Samad alias Mohammad Samad Samsherkhan. Considering this evidence, the previous bail application of Khatib Imran was rejected by this Court on 20 th September, 2007, and Akil had withdrawn his previous 18 Appln 942-2011 application for bail. 16. The learned Counsel for the applicant submitted that the confessional statements have been retracted as can be seen from the reports of Shri S.S.Shirke, Chief Metropolitan Magistrate sent to the Special Judge on 16 th June, 2006 and 13 th July, 2006. The learned Special Public Prosecutor submitted that it was not necessary for the learned Chief Metropolitan Magistrate to record retractions or make a report in the manner done. He submitted that Section 18 of the MCOCA Act merely requires the person, who makes a confession to be produced before the learned Chief Metropolitan Magistrate to whom confession is also sent under sub-section 4, and the learned Chief Metropolitan Magistrate is supposed to scrupulously record statement, if any, made by the accused so produced. Therefore, according to him, the learned Magistrate need not have read over the 19 Appln 942-2011 contents of the confessional statement to the accused concerned and that the procedure followed was not proper. It may not be necessary to go into this question right now. 17. In ARUP BHUYAN Versus STATE OF ASSAM, reported at (2011) 3 Supreme Court Cases 377 the Court held, in the context of the offences under the Terrorist And Disruptive Activities (Prevention) Act, 1987, that though confession made to police can be sole basis for conviction, in the absence of corroboration, confession itself is a weak kind of evidence and Courts should be cautious while accepting the same. 18. In Rabindra Kumar Pal alias Dara Singh Vs. Republic of India, reported at 2011 ALL MR (Cri) 673, the Court considered the evidentiary value of a confessional statement recorded under Section 164 of the Code of Criminal Procedure. The Court quoted with 20 Appln 942-2011 approval from a previous Judgment in State thr.Superintendent of Police, CBI/SIT Vs. Nalini and Others, (1999)5 SCC 253 at 307 : [(1999 ALL MR (Cri) 1273 (S.C.)]. The following observations are relevant:- 96. What is the evidentiary value of a confession made by one accused as against another accused apart from Section 30 of the Evidence Act? While considering that aspect we have to bear in mind that any confession, when it is sought to be used against another, has certain inherent weaknesses. First is, it is the statement of a person who claims himself to be an offender, which means, it is the version of an accomplice. Second is, the truth of it cannot be tested by cross- examination. Third is, it is not an item of evidence given on oath. Fourth is, the confession was made in the absence of the co-accused against whom it is sought to be used. 97. It is well-nigh settled, due to the aforesaid weaknesses, that confession of a co-accused is a weak type of evidence. A confession can be used as a relevant evidence against its maker because Section 21 of 21 Appln 942-2011 the Evidence Act permits it under certain conditions. But there is no provision which enables a confession to be used as a relevant evidence against another person. It is only Section 30 of the Evidence Act which at least permits the court to consider such a confession as against another person under the conditions prescribed therein. If Section 30 was absent in the Evidence Act no confession could ever have been used for any purpose as against another co-accused until it is sanctioned by another statute. So, if Section 30 of the Evidence Act is also to be excluded by virtue of the non obstante clause contained in Section 15(1) of TADA, under what provision can a confession of one accused be used against another co-accused at all ? It must be remembered that Section 15(1) of TADA does not say that a confession can be used against a co-accused. It only says that a confession would be admissible in a trial of not only the maker thereof but a co-accused, abettor or conspirator tried in the same case. 98. Sir John Beaumont speaking for five Law Lords of the Privy Council in Bhuboni Sahu Vs. R., AIR 1949 PC 257 had made the following 22 Appln 942-2011 observations: Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of 'evidence' contained in Section 3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross- examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. 99. The above observations had since been 23 Appln 942-2011 treated as the approved and established position regarding confession vis-a- vis another co-accused. Vivian Bose, J., speaking for a three-Judge Bench in Kashmira Singh Vs. State of M.P., AIR 1952 SC 159 had reiterated the same principle after quoting the aforesaid observations. A Constitution Bench of this Court has followed it in Haricharan Kurmi Vs. State of Bihar, AIR 1964 SC 1184. 19. In Vijay Gulab Ahir V/s. The State of Maharashtra (Criminal Application No.3499 of 2008) decided on 3rd February, 2009, this Court was considering the question of grant of bail to a person accused of an offence under the MCOCA Act. The Court observed that the confessional statement of co-accused alone is not sufficient for proving complicity of accused in crime. The following observations of the Court may be usefully reproduced:- Upon the conjoint reading of the aforesaid provisions, particularly section 2(d), in order to invoke the provisions of the M.C.O.C. Act, it has to be 24 Appln 942-2011 shown that the accused has undertaken continuous unlawful activity which is : (i) prohibited by law; (ii) a cognizable offence and (iii) undertaken either singly or jointly as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before the competent court within the preceding period of ten years and that Court has taken cognizance of such offence. The first and foremost thing, therefore, which has to be established by the Investigating Officer is to show that there is some material on record to indicate that the accused has been a member of an organised crime syndicate or has acted on behalf of such members. If the Investigating Officer is not in a position to show that there is any material to indicate that the petitioner has acted as a member of the organised crime syndicate or has acted on behalf of such syndicate, provisions of