:1: IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1202 OF 2005 Dattatraya Krishnaji Ghule ... Applicant versus The State of Maharashtra & anr. ... Respondents ... Mr.S.P. Kadam, for the Applicant. Mr.A.S. Gadkari, A.P.P., for the Respondent No.1. Mr.P.D.Gharat, for Respondent No.2. WITH CRIMINAL APPLICATION NO.1048 OF 2005 Hitendra Manohar Vichare ... Applicant versus The State of Maharashtra ... Respondent ... Mr. S.R.Pasbola, i/by Mr.N.G. Bane & Mr. Dheeraj Dhutmal, for the Applicant. Mr. A.S. Gadkari, A.P.P., for the Respondent State. :2: Mr. P.D. Gharat, for the C.B.I. WITH CRIMINAL APPLICATION NO.1666 OF 2005 Hitendra Manohar Vichare ... Applicant versus The State of Maharashtra ... Respondent ... Mr. S.R.Pasbola i/by Mr.N.G.Bane & Mr.Dheeraj Dhutmal, for the Applicant. Mr. A.S. Gadkari, A.P.P., for the Respondent State. Mr.P.D. Gharat, for the C.B.I. ... CORAM : A.M.KHANWILKAR,J. 13th April 2005 ORAL JUDGMENT : 01. All the three Applications are being disposed of together by this common Judgment, for the question involved is common. The Applicants - Accused - by these Applications have challenged the order passed by the trial Court (Special Judge under M.C.O.C.Act, Pune) permitting further :3: continued detention of the accused upto specified date, so as to enable the prosecution to submit final report with documents and its copies. The matter is brought before this Court in the following background. 02. The Applicants accused came to be arrested on 8th October 2004 in relation to offence registered as RC.10/2004/EOU-IV/New Delhi for offences under sections 259, 260, 261, 262, 263-A of the Indian Penal Code, based upon Crime No. 131/2001 of Police Station, Thane Nagar, Maharashtra. This case was registered by way of transfer/adoption of case/Crime No.131/2001 of Police Station, Thane Nagar, against Sandeep Krishna Kandar, George Thomas and others. The case was entrusted to C.B.I. for investigation. The case pertains to seizure of counterfeit revenue stamps and share transfer stamps worth Rs.51,390/- from one Sandeep Krishna Kandar, resident of Charlie Pereira Chawl, Amboli Village, Mahatar Pada, Andheri (West), in front of Khandelwal Sweets, Station Road, Thane, on 16th May 2001 at 2140 hours. After investigation, the Crime Branch submitted final :4: report against the said Sandeep Krishna Kandar and two others, namely, Hemant Dubey and George Thomas, on 12th June 2002, vide C.C.No. 211/2002. Another supplementary charge sheet was submitted against two more accused persons, i.e., Shabeer Mushtaq Ahmed and Shankar Gannappa on 25th March 2003. The third supplementary charge sheet was filed by the Thane Crime Branch against Shiv Shankar Kamleshwar Singh on 3rd April 2003. The Thane Crime Branch had also arrested M.D. Jadhav, Jacob Chako, Sheikh Mohamed Hussein Sheikh, Sirajuddin Nagipudi, Feroze Abdul Rehman Sheikh and Mohd. Yousuf Singutti at the time of handing over of the case to C.B.I. 03. After transfer of the case to C.B.I., during the investigation by C.B.I., it transpired serious involvement on the part of Thane Police led by Police Inspector Hitendra Manohar Vichare (Applicant in Criminal Application No.1048 of 2005 and Criminal Application No. 1666 of 2005) and Police Sub-Inspector Datta Ghule (Applicant in Criminal Application No. 1202/2005) in knowingly aiding and abetting of the Crime Syndicate headed by Abdul Karim Ladsab Telgi and :5: permitting the organised crime syndicate to carry on its unlawful activities for more than a year till the main accused persons were arrested in the Bund Garden Case. It is the prosecution case that by fabrication of evidence and by showing false recoveries, the State Government officials allowed the main culprits to escape and helped the organised crime syndicate of Telgi and his associates to flourish in Thane area in selling fake stamps through various gangs as found during investigation. It is not necessary to refer to further details of the prosecution case against the Applicants, for the nature of issue raised in the present Applications. Suffice it to observe that the Applicants are facing trial in respect of offence punishable under sections 120-B read with sections 109, 216, 218, 255, 259, 260, 261, 263, 263-A, 420, 471, 341 of the Indian Penal Code, read with section 63(a) and (b) of the Bombay Stamps Act and sections 3(1)(I)ii), 3(2), 3(4), 3(5), 4 and 24 of the Maharashtra Control of Organised Crimes Act, 1999 (hereinafter referred to as "the MCOCA") and sections 7, 12 and 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. :6: 04. As ninety days were likely to expire after the arrest of the Applicants on 8th October 2004, the Public Prosecutor submitted his report to the Special Judge in terms of proviso to sub-section (2) of section 167 of the Cr.P.C., read with section 21(2) of the MCOCA for extending the period to submit final report. The said report reads thus: " IN THE COURT OF SPECIAL JUDGE FOR MCOCA CASES, SHRI S.M.SHEMBHOLE, PUNE. State (CBI) Versus Sandeep Krishna Kandar & others in RC10/2004 EOU-VI/CBI/N.Delhi Crime No.PS 131/2001 of PS Thane Nagar, U/S 120-b r/w Sec. 109, 216, 218, 255, 259, 260, 261, 263(a), 420, 471, 34IPC r/w 63(a)&(b)of Bombay Stamp Act and Sec.3(1),i, ii, (2), 3(4), 3(5) & 4 & Sec 24 of the MCOC Act r/w sec.13(1)(d) of P.C.Act 1988. REPORT INDICATING THE PROGRESS OF THE INVESTIGATION AND THE SPECIFIC REASONS FOR THE DETENTION OF THE ACCUSED BEYOND THE SAID PERIOD OF 90 DAYS. MAY IT PLEASE YOUR HONOUR : I, Shri Pradip D. Gharat, the Special Public Prosecutor for CBI in Stamp related cases (Telgi cases) do hereby :7: most respectfully state and submit as under : 1) I say that I have called for a detailed Affidavit of the investigation officer in this case, viz., Shri S. Balasubramony, Dy.Superintendent of Police, CBI, EO-III, New Delhi, and he has informed me of progress of the investigation. I) PROGRESS OF THE INVESTIGATION (a) The investigation in this case was undertaken by Dy.SP Shri S.Balasubramony, on 2-4-2004 pursuant to the order of his superiors since the investigation in this case stood transferred to C.B.I. pursuant to the order of the Hon’ble Supreme Court dated 15-3-2004 in W.P.(Civil) No.522/2004, from Thane Crime Branch, Dist. Thane. (b) Initially the offence was registered at Thane Nagar Police Station, Thane, vide Crime No.131/2001 on seizure of Revenue Stamps and Share Transfer Stamps worth Rs.51,390/- which were counterfeit in nature from one Sandeep Kandar, r/o Charlie Pereirra Chawl, Amboli Village, Matarpada, Andheri in front of Khandelwal Sweets, Station Road, Thane on 16.5.2001 at 21.40 hrs. The Crime Branch after completing investigation in the said case charge sheeted Sandeep Kandar and two other accused persons namely Hemant Dubey and George Hiwale on 12.6.2002 vide CC No.211/2002. Another supplementary charge sheet was submitted against two more accused persons Shabbir Mushtaq Ahmed and Shankar Ganappa on 25.3.2003. The third supplementary charge-sheet was filed by the Thane Crime Branch against Shiv Shankar Kamleshwar Singh on 3.4.2003. The Thane Crime Branch had also arrested MD Madhav, Jacob Chacko, Sheikh Mohd. Hussain and Sirrajuddin Nasipudi, Firoz Abdul Rehman Sheikh and Mohd. Yusuf Singutti at the time of :8: handing over of the case to CBI. Further investigation is in progress. (c) The investigation by CBI disclosed that the present offence is the part of the conspiracy and the criminal activity of accused A.K.L. Telgi and his associates to counterfeit stamps and stamp papers and to dupe the government and the State Exchequer to the tune of thousands of crores of Rupees. The activity has been disclosed as the illegal business of the prime accused A.K.L. Telgi and his associates, and the subject of the organized crime. Hence, the provisions of MCOCA have been applied in this case. (d) As divulged through the contentions of the IO, the further investigation has disclosed huge ramifications and the investigation is at a crucial stage. The investigation of CBI has disclosed the involvement of the police officers who had investigated the offence and that the officers who were supposed to bring the truth on record and book the real offenders, have in fact, actively connived with the prime accused A.K.L. Telgi and his associates to facilitate the smooth operation of his organized criminal activity of counterfeiting stamps and stamp papers and have furthered the said illegal business. (e) The hint of something irregular was observed during the course of interrogation of the witnesses. It was also felt that the investigation of the case was not carried out in a proper manner as shown in the records taken over. The most glaring aspect that was felt was that none of the officers who had conducted the investigation of the case, had thought it worthwhile to find out the source of stamps found in possession of Sandeep Kandar on 16.5.2001 or the stamps that were recovered from his residence. When the officers were :9: questioned on this point, they could not give any satisfactory reply. The investigation revealed that the stamps were forged and resembled the make of stamps seized in PS Bund Garden case and therefore the source should be the same for these stamps. However, the entire investigation conducted by the State Police could not make it clear as to from where Sandeep Kandar had purchased the stamps in his possession, except for a vague statement that he used to purchase from 2 or 3 vendors and sell it to Shabbir, a key Telgi aide. The previous investigation was not satisfactory so as to reply as to why Shabbir Mushtaq Ahmed Sheikh, a key Telgi associate, who was dealing in the sale of forged stamps should purchase stamps from a small time vendor like Sandeep Kandar. When these observations came into light, it was felt that a deeper probe was required into the matter. The initial investigations conducted by the Thane Crime Branch smelt something fishy which required a deeper probe. (f) Investigation has conclusively proved the presence of Shabbir Ahmed in the Thane Crime Branch during the week of 16.5.2001 by independent witnesses and the evidence given by them. (g) Evidence against the police officers has been collected during the course of further investigation conducted. It has clearly been established that they have actively aided and abetted the Organized Crime Syndicate headed by AKL Telgi. It is clearly seen that Shabbir Mushtaq Ahmed who was key Telgi aide was in custody of the Thane Police during the period 16th May 2001 to 20th May 2001. This has been confirmed through the statements of witnesses. Further, the records of Station Diary collected from the Thane Police Station do not reflect the arrest of this accused meaning thereby he was kept in illegal custody. :10: Later, his arrest was reflected by taking his custody from the Bund garden Case. It is also clear that he had been allowed to escape from the Police Custody as his arrest was not shown in the initial stages. Further, the evidence has been collected to prove the role of Shabbir in this case as to be the main person who had supplied the stamps that were later seized by the Thane Police. He had lured Sandeep Kandar into the trap as Madhav working for Hemant Dubey so as to show Hemant Dubey a wanted accused. So the focus of investigation was deftly shifted from Shabbir to Hemant Dubey. The focus of the investigation was shifted from Shabbur to Hemant Dubey who was later arrested by this accused police officer. (h) The role of the accused police officer H.M. Vichare in allowing the Organized Crime Syndicate to flourish by allowing Shabbir to escape and booking persons not connected with the crime in question and showing forged recovery from them is established. Commission of offences under Sections 3 and 34 of the MCOCA is made out. The role of accused PI Datta Ghule is also similar to that of Vichare. He became associated with the case after the arrest of Sandeep Kandar. He had played an active role in the arrest of Hemant Dubey & George Hiwale and also showing forged recoveries from them through the false panchnamas dated 23/5/2001 and 24/5/2001 and also through a forged disclosure dated 24/5/2001. He had also actively abetted the Crime Syndicate by booking persons who are not connected with the crime and thereby allowing the Organized Crime Syndicate to continue its illegal activities of selling forged stamps. (i) The panchnamas showing the arrests of Hemant Dubey and George Hiwale and recovery has been proved to be manipulated by the officers of the Crime Branch while handling the case. Evidence :11: has come on record that George Hiwale was picked up on 22.5.2001 from his office in Worli with stock in hand for which no panchnama has been made. The arrest and recovery from the vendors George Hiwale and Hemant Dubey has also been proved false for that particular date and no recovery has been made from him. Moreover, the disclosure made by the local police stating that they used to purchase stamps from Madhav and sell it to Shabbir has also been carried out in the office of Hemant in the presence of his employees on 24/5/2001 and the subsequent recovery shown from the office has been proved to be false. The evidence collected does not bring out the involvement of these two individuals in the case under reference. (j) The evidence collected during the further investigation conducted by the CBI has clearly established that police officers, Sub Inspector Vichare & Senior Inspector Datta Ghule of the Thane Crime Branch have misused their official position for pecuniary gains by diverting the investigation of the case from the actual culprits and foisting a false case on two persons not involved in the case namely Hemant Dubey and George Hiwale. They have also diverted the recoveries made from the actual culprits and shown it on the two persons Hemant & George who have been falsely implicated in the case. They have also allowed a crucial Telgi aide namely Shabbir Mushtaq Ahmed Sheikh to escape from police custody by not showing his arrest in the case in the initial stages. They have in conspiracy with the Telgi aide Shabbir aided and abetted the Organized Crime Syndicate of AKL Telgi by allowing this accused to escape and thereby the business of selling of counterfeit stamps to continue in that region. (k) The ramifications of the offence have disclosed that the huge amounts of money :12: to the tune of several lakhs of Rupees have been exchanged to do and undo the things. Such prime facie satisfaction entitles the IO to verify whether there is substance in such suspicions, since, if it had really happened, it is the prime reason which had resulted in the tremendous growth of the organised crime which has developed to such an extent. II - SPECIFIC REASONS FOR THE DETENTION OF THE ACCUSED. The perusal of the progress report on the basis of the Affidavit of the Investigation Officer shows that the offence committed by the Organized Crime Syndicate is of very serious nature. The Hon’ble Mumbai High Court is pleased to brand such an offence as one, equivalent to waging war with the Government from inside, since it hampers the economy of the State. The Hon’ble High Court is pleased to note that such type of economic offenders do not deserve any kind of mercy. The Hon’ble Supreme Court is pleased to consider the economic offences as heinous offences than the offence of murder. The Hon’ble Supreme Court is pleased to note that there is some motive for commission of the offence like the offence of murder, but the economic offences are the cold blooded offences committed in a pre-planned manner. In the light of the aforesaid observations of the Hon’ble High Court and the Hon’ble Supreme Court, this Hon’ble Court is urged to consider the standing of some of the accused presently in custody. The accused Dattatray Krishnaji Ghule and accused H.M.Vichare are the higher police officers. The day the offence was disclosed, they were expected to consider the seriousness of the offence. They were further duty bound to collect the information about the modus operandi and the previous :13: records as to whether identical offences have been registered at any police station in the State of Maharashtra and as to whether the persons involved had any role to play in such offences. The failure of the officers to act properly and their acts of omissions and commissions as surfaced through the further investigation by the present I.O. prove that the accused police officers in custody were fully aware of the scope of the offence which they were investigating. At the time of facilitating the main accused persons to remain scot free, they were fully aware as to what will be the result of their such omissions and as to in what manner they were allowing the systematic growth of the organised crime for which their co-accused stand charged. Thus, the offence committed by the police officers stands aggravated many fold since they are the persons who were trusted by the State and the society to protect their interest. Instead of acting in furtherance of such duty entrusted to them, they have joined hands with the offenders who have caused loss of thousands of crores of rupees to the State exchequer and ultimately to the objects of this State. The evidence collected against the accused persons proves that the acts of the arrested accused are connected with and incidental to the development of the organized criminal activities of counterfeiting stamps such as share transfer stamps and stamp papers etc. The material collected by the investigation against the accused in the custody is, by nature such that some of the accused have committed or attempted to commit and advocated the organized crime and the others have facilitated the commission of such offences and, therefore, all of them are liable for the punishment which will be not less than five years but which may extend to life imprisonment and they shall also be liable to a fine, subject :14: to the minimum fine of Rs.5,00,000/-. The perusal of the material collected shows that there are reasonable grounds for believing all the accused guilty of the offence with which they have been charged. It is, therefore, prayed that this Hon’ble Court be pleased to consider the prayer in the application for extension of period of investigation upto 180 days and the prayer be granted. PUNE, DATED THIS 22nd DAY OF DECEMBER 2004. (SHRI PRADIP D.GHARAT) SPL.PUBLIC PROSECUTOR, CBI." The said report of the Public Prosecutor was filed on 22nd December 2004 along with the affidavit praying for time for a period of 180 days, as is available by virtue of the modified application of section 167 of the Code by virtue of section 21(2) of the MCOCA. While considering the said report, the Special Judge on 3rd January 2005 ordered production of the accused on 6th January 2005. The justness of the order dated 6th January 2005 has been put in issue at the instance of the Applicant in Criminal Application No. 1202 of 2005 and Criminal Application No. 1048 of 2005. Be that as it may, the 90 days’ :15: period for submitting final report ordinarily was to expire on 5th January 2005. As per the direction already passed by the Special Judge, the report submitted by the Public Prosecutor for grant of further time to submit final report as well as the bail application preferred by the Applicants on the ground of default within the meaning of section 167(2) of the Code, read with section 21(2) of the MCOCA, was considered together. The Special Judge, by his speaking order, dated 6th January 2005, accepted the request made on behalf of the Public Prosecutor; however, granted extension of time only till 20th January 2005 and not for 180 days as was originally prayed. 05. As the extended time was to expire on 20th January 2005, the Public Prosecutor filed further report before the Special Judge praying for further time to submit final report under section 173 of the Code. The said report dated January 20, 2005, reads thus: IN THE COURT OF SPECIAL JUDGE FOR MCOCA CASES :16: COURT OF SESSIONS AT PUNE ________________________________________ State (CBI) Versus Sandeep Krishna Kandar & others in RC10/2004 EOU-VI/CBI/N.Delhi Crime No.PS 131/2001 of PS Thane Nagar, U/S 120-b r/w Sec. 109, 216, 218, 255, 259, 260, 261, 263(a), 420, 471, 34IPC r/w 63(a)&(b)of Bombay Stamp Act and Sec.3(1),i, ii, (2), 3(4), 3(5) & 4 & Sec 24 of the MCOC Act r/w sec.13(1)(d) of P.C.Act 1988. V/s 1. Dattatraya Krishnaji Ghule 2. Hitendra M. Vichare (both lodged at Thane Central Prison, Thane.). REPORT INDICATING THE PROGRESS OF THE INVESTIGATION AND THE SPECIFIC REASONS FOR THE DETENTION OF THE ACCUSED BEYOND THE SAID PERIOD OF 105 DAYS. MAY IT PLEASE YOUR HONOUR : I, Shri Pradip D. Gharat, the Special Public Prosecutor for CBI in Stamp related cases (Telgi Cases) do hereby most respectfully state and submit as under: 1) I say that I have called for a further detailed Affidavit of the investigation officer in this case, viz., Shri S.Balasubramony, Dy.Superintendent of Police, CBI, EO-III, New Delhi, and he has informed me of progress of the investigation. I - PROGRESS OF THE INVESTIGATION :17: a) Shri S. Balasubramony, Dy. Superintendent of Police, CBI, EO-III, New Delhi, has continued the investigation in this case after the kind order of this Hon’ble Court on 6.1.2005. He has submitted a detailed affidavit in respect of the investigation conducted so far and as to the reasons for which he wants the time period extended upto 75 days for further investigation. b) I have carefully perused the contents of the affidavit placed before me by him and I annexe the same to this report for the kind perusal of this Hon’ble Court. c) From the perusal of the affidavit, it is seen that some vital information has been received by the IO at this juncture which shows that the scrutiny of the said information is very much necessary for leading of the investigation in the right way to find out the culpability of the other persons, if any. He had expressed the possibilities of some more arrests if required, of the persons who may liable for the offences forming part of the present transaction under investigation. d) The further investigation by the IO shows that he had recorded the statements of some more persons to find out the appropriations of the illegal funds forming part of the present offence. In the light of the said statements, the IO requires time to verify the appropriations of the funds and to find out as to in what manner the funds have been appropriated. The seizure of such funds is necessary to complete the investigation in this case, also making the persons responsible for such intentional appropriation of the funds and the persons who are party to the offence. e) The perusal of the affidavit also shows that an application for various scientific tests including Brain Mapping :18: including Narco Analysis, Polygraph (Lie Detector Test) as well as T-300 test is submitted before the Ld. Chief Judicial Magistrate, Thane. The Ld. Chief Judicial Magistrate, Thane, is pleased to issue notices to both the accused to submit their say on the said application. The copies of the said application have been served upon the advocates of both the accused in the Court of the Ld. Chief Judicial Magistrate, First Class, itself on the date of the presentation of the application, i.e., on 10th January 2005. The advocates for the accused have been directed to submit their say on the said application on 25th January 2005, the adjournment to which date, they have not opposed. As can be seen from the affidavit, the fate of the further investigation depends on the revelations through the further interrogations in the light of the scientific tests on the accused, if the said prayer is granted by the Court. In the light of the material collected so far, such revelations will be crucial and will