1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCELLANEOUS APPLICATION(BAIL) NO. 106 OF 2010 Mr. Ashish Shirodkar Son of Suresh Shirodkar, Age 38 years, And presently in Judicial Custody. Through his next friend Mr. Girish Shirodkar Age 31 years. ... Applicant versus 1. State Through the Public Prosecutor. 2. Police Inspector, CID Crime Branch, Dona Paula. ... Respondents Shri Arun Bras De Sa, Advocate for the Applicant. Shri C. A. Ferreira, Public Prosecutor for the Respondents. CORAM : N. A. BRITTO, J. DATE : 2ND JUNE, 2010. ORDER Heard. 2. The applicant herein seeks bail, after the same has been refused to him, by Order dated 16-4-2010 of the learned N.D.P.S. Court, Mapusa. 2 3. The applicant was the Inspector in charge of ANC Police Station from 2-4-2007 to 15-10-2009. He was arrested in Crime No.16/2010 of the Crime Branch, CID, Panaji, on 18-3-2010, and since then has been in custody. His application for bail came to be rejected, essentially because the involvement of the Police Officials and suspected drug dealers was a serious matter which required thorough investigation. As already noted that was on 16-4-2010. 4. Crime No.16/2010 came to be registered on 10-3-2010 initially under Section 120-B I.P.C. and Sections 7, 11 and 12 of the Prevention of Corruption Act, 1988. The application for bail has been opposed by the I.O. i.e. Dy. S. P., CID, CB, Dona Paula, by reply dated 20-4-2010, and in the said reply it is, inter alia, stated that the case is very sensitive and serious wherein the involvement of Police Officials have come to light, and, in order to curb the menace of such deadly flow of drugs in open market illegally, meticulous and thorough investigation is required to be carried out to bring to book all the concerned involved in such nefarious anti social activities and defaming the law enforcing department which is trusted by the public and entrusted by the Constitution of India to take legal action against such illegalities. The investigations of this case are stated to be at this initial stage and more direct and indirect circumstantial evidence is required to be collected against the accused and moreover the conduct of the applicant would dis-entitle him for 3 bail. 5. The sequence of events as can be gathered from the reply filed and the record of investigation is as follows: (a). On 8-2-2010 one of the accused, namely P.C. Ramchandra Kankonkar alias Builder's mobile phone no. 9923332100 was intercepted and he was found having offered 1 kg. of charas to Yaniv Benaim, son of Amram Benaim, an israeli national known as Atala, and thereafter the said constable was caught outside Atala's residence at Siolim but no drugs were found with him except for two mobile sets the other having No.9822103816. A station diary to that effect was made at 00.15 hours of 9-2-2010. No action was taken against him. (b). The said Atala was convicted on 16-5-2006 in C.C. No.OA/ 233/S/06/F(ANC Crime No.18/05) under Section 20(b)(ii)(a) of the N.D.P.S. Act, 1985. He was also convicted on 21-12-2006 in C.C. No.765/S/2006/C in Anjuna Police Station Crime No.102/06 under Section 14 of Foreigner's Act, 1946 r/w Section 7(1)(3) of Foreigner's Order 1948, etc. Thereafter by Order dated 30-5-2006 served upon him on 31-5-2006 he was ordered to be deported after the expiry of a period of 15 days from the date of service of the order. It is stated that the said Atala was not deported pursuant to the said Order as he was not available in the State of Goa till he was arrested in this crime on 9-3-2010. Another case under Section 14 of the Foreigners Act, 1946 r/w 4 Section 7(1)(3) of the Foreigner's Order, 1948, etc. arising from Crime No.103/07 of CID, CB Police Station is stated to be pending against him. The dates of convictions are not very clear and there is no explanation why Atala was not arrested on 8-2-2010 if there was an order of deportation against him. (c). The said Atala is stated to have posted some video clips on www.metacafe.com and www.youtube.com in the year 2008 or thereabout and the said clips according to the I.O. disclose that the said Atala was threatened by the applicant herein by demanding a sum of Rs.2,00,000/- in the year 2008 or thereabout to compromise the matter on the issue of drugs, which was brought down after negotiation to Rs.1,00,000/-. The other video clip shows that the said Atala is having conversation with Shahesh i.e. P.C. Shahesh Pokle one of the accused in this case, as regards one Officer helping to steal drugs from the Mapusa Court and giving them to the said Atala and the said Officer according to the I.O. is none other than the applicant herein. (d). P.S.I. Sunil Gudlar who is presently in charge of the ANC Police Station arrested accused David Driham alias Dudu another israeli national on 23-2-2010 in Crime No.05/10 under Sections 20(b)(ii)(c), 21(b) and 22(c) of the N.D.P.S. Act, 1985. The said Dudu was interrogated by the said P.S.I. Gudlar and what he disclosed in his interrogation, the Investigation Officer believes is the correct state of affairs, shows the functioning of the ANC Police Station as well as certain sections of the press. 5 6. According to the I.O. on 25-2-2010 the said David @ Dudu is stated to have told the said PSI Gudlar thus: “While staying in Goa, I developed good relations with Ashish Shirodkar, Police Inspector earlier P.I. ANC and other policemen like Sandeep Parab @ Kamin, Hussein Sheikh, Shahish Pokle and Sanjay Parab. They have been working in different departments of Police like in ANC, Crime Branch Police and I used to pay money to them and in return I used to get protection from them. They used to visit me very frequently. They used to catch the drug dealers, mostly foreigners and release them if good money was paid to them. They used to tell me they can be my good friends, if I pay them good money and then they would not disturb my drug business. I met them several times and paid them money every month. They used to contact me on phone and we used to meet at certain isolated places and some times at my home. I used to pay Rupees Forty to Fifty Thousand every month to the ANC”. On further interrogation on 26-2-2010 the said accused David @ Dudu has stated as follows:- “In the years 2005-2006, some journalists of news papers started writing against me. This caused a lot of irritation and trouble for me for continuing to stay in Goa. At that time I sought help of Sandeep Parab @ Kamin. He got in touch with a news reporter by name Vilas(surname I do not remember). They contacted some journalists and told me 6 later that they had taken care of the matter and no more news item would appear in the news papers about me. I had paid a large sum of money to Kamin and his friend Vilas. Later the media reports about me reduced appearing in the news papers. From that time onwards I maintained good relations with some journalists by paying them protection money regularly. This money was paid on my behalf to them by Sandeep Parab @ Kamin. However, Vilas some times came to my house also to take some money directly from me. Nothing much appeared in news papers about me after that. Later P.I. Ashish Shirodkar also used to pay money on my behalf to some news paper reporters. He had promised me that he would take care about the news reporters and keep them quite about me”. On 27-2-2010 the said David @ Dudu is stated to have said that “several other drug dealers in Goa also paid money to Ashish as he was known as Chief of ANC. Ashish also gave drugs to different dealers which he seized from other drug dealers. You can see the video clipping on YouTube website which describes his dealings with other drug dealer Atala. I know Atala as he is an Israeli and a drug dealer. His real name is Yaniv but people know him as Atala. He had very good links with Ashish Shirodkar and also used to pay him protection money. Ashish had told me once that my phone can be heard by them through some devices. He told me to keep changing my mobile phone numbers regularly and not to take any number in my own 7 name”. 7. On 3rd and 4th March, 2010, Prudent Media telecast the said video clippings from www.metacafe.com and www.youtube.com on their local channel. The electronic media having taken up the issue of drug dealers and the Police nexus, on 5-3-2010 the said PSI Gudlar made a report to his superior Officers. A suspension Order dated 5-3-2010 by Deputy Inspector General of Police followed based on the investigations of the said F.I.R. No. ANC PS 5/2010 and the said video clippings and the applicant herein along with Head Constable Hussein Sheikh, P.C. Shahesh Pokle, P.C. Sanjay Parab, P.C. Sandeep Parab were suspended, having indulged in acts unbecoming of Police Officers. 8. Thereafter came the F.I.R. dated 10-3-2010 lodged by none other than the Dy.S.P., CID Crime Branch, Dona Paula, Panaji. Although, it is submitted that the said F.I.R. was initially registered against Atala, the applicant herein and Shahesh Pokle, it can be seen that it was filed against Atala, Ashish Shirodkar and others, without any names. Least which could have been done is that those officers who were suspended could have been named in the F.I.R. At present, besides those who were suspended, PSI Punaji Gawas and P.C. Ramchandra Kankonkar @ Builder have been arrested. P.C. Sanjay Parab who was absconding was arrested last i.e. 14-5-2010. 8 9. Shri Arun Bras De Sa, the learned Counsel appearing on behalf of the applicant submits that the video clippings at the most could be considered as a boasting of the type normally indulged by college boys and at the most they are only allegations. Learned Counsel further submits that no F.I.R. was filed regarding the incident of 8-2-2010 involving Constable Ramchandra Kankonkar @ Builder. He further submits that although the applicant is in custody for over two months no case of disproportionate assets have been prima facie established against the applicant. Learned Counsel further submits that since the year 2000 the Drugs Destruction Committee had not carried out the destruction of drugs and this position has been admitted in para 22 by the Investigation Officer. He further submits that if at all any drugs were missing pursuant to report dated 1-7-2006 prepared at the instructions of Allen D'Sa, the then Dy. S. P., Panaji the present applicant cannot be held responsible for the same as the applicant was in charge of the said Police Station only from 2-4-2007. Learned Counsel further submits that PSI Gawas vide report dated 20-10-2009 i.e. after the applicant was transferred from ANC Polifce Station had handed over the charge to PSI Sunil Gudlar of ANC Police Station and the latter had not raised any issue that any drugs were missing. Learned Counsel further submits that the provisions of N.D.P.S Act were not at all attracted to the facts of the case. 9 10. On the other hand, Shri C. A. Ferreira, the learned Public Prosecutor, when asked to point out the evidence gathered so far against the applicant to justify his further detention, submits that the applicant was in constant touch over the phone with the said Atala and was holding another mobile phone in a fake name. Learned Public Prosecutor points out to the statement of Constable Shyam Parab to show that the applicant herein had asked certain exhibits to be taken out of the godown but concedes that those exhibits have not been found missing. Learned Public Prosecutor then points out to the statement of the owner of Atiopa Bar and Restaurant which according to him shows that the staff from ANC Police Station including the applicant herein and Shahesh Pokle and those of Anjuna Police Station used to come and take food and their bills were paid by one boy who was working for the Cyber Cafe run by the said Atala, being sent by him. Learned Public Prosecutor also points out to the station diary dated 27-2-2010 in Crime No.5/2010 being investigated by the said PSI Gudlar, to which reference has already been made. Learned Public Prosecutor concedes that till date no evidence is collected about disproportionate assets held by the applicant. 11. Considering that a Dy.S.P. was investigating the case against a P.I., one PSI, one H.C. and four police constables, all belonging to the same 10 Department and the way the investigations were progressing, the learned Public Prosecutor was asked whether the State would be interested in handing over the investigations to an independent agency like the CBI as the case involved police drug peddler nexus. On behalf of the State, a statement was made that the State Government at this stage was of the opinion that there was no need of handing over the case to any independent agency like CBI because the case was being investigated by the Crime Branch. Today, a statement has been made that the State is looking out for a Senior Officer to continue with the investigation of this case, who is or was not associated with ANC P.S., and who could investigate the case under the direct supervision of IGP and report to the IGP. 12. As said, initially, the F.I.R. was registered on 10-3-2010 for offences under Sections 7, 11 and 12 of the P.C. Act, 1988 and Section 120-B I.P.C. On 17-3-2010 Sections 8(c) r/w Sections 28, 29, 30, 31 and 59(2)(b) of N.D.P.S. Act, 1988 came to be added and the reason for adding the said Sections of N.D.P.S. Act, can be seen from the letter dated 22-4-2010 addressed by the I.O. to Deputy Inspector General of Police as well as the reply filed to the application for bail. The reason is that Ramchandra Kankonkar @ Builder had attempted to commit an offence under the N.D.P.S. Act when he was intercepted by the Crime Branch Officials outside the house of Atala on 9-10-2010. It is also noticed that Sections 380 and 409 I.P.C. have 11 been also appearing and disappearing from time to time but a perusal of the F.I.R. shows that the same was initially registered under Sections 120-B I.P.C. and Sections 7, 11 and 12 of P.C. Act, 1988 only. At the time of invoking the offences under N.D.P.S. Act, it may be stated that the applicant was nowhere in mind. Section 31 of the N.D.P.S. Act was invoked because of Atala, which prima facie, is not at all applicable and the remaining Sections were meant for the said Builder and although as per www.metacafe.com it was Atala who was threatened by the applicant, it is Atala who was arrested first, even before the F.I.R. was registered and the applicant was first called to record his statement and then was arrested only on 18-3-2010. This only shows the direction, the investigations are going on. I need not say anything more. 13. I have perused the record. In a way, now there is a clear admission, on the part of the Police Department that there is a Police drug dealer nexus on account of which drugs are freely available in the market. Is there anyone in the State of Goa, not connected with police, drug dealers and politicians, who does not believe that this nexus exists because of political patronage? There is no doubt that Section 59(2)(b) of the N.D.P.S. Act is a serious offence which invites punishment of R.I. for a term which shall not be less than ten years but which may extend to twenty years and fine which shall not be less than Rupees One Lakh but which may extend to Rupees Two Lakhs. It is surprising to note that for a decade, the Drugs Destruction 12 Committee has not met. Likewise, it is also surprising to note that the narcotics godown was inspected on or about 1-7-2006 but no action for missing drugs, particularly 24 kgs. of charas was taken against the accused PSI Punaji Gawas who was in charge of the same. It is not known as to what is the connection between the case of Ramchandra Kankonkar, the accused PSI Punaji Gawas and the present applicant along with others, to be investigated in this crime. It is not the case of the I.O. that any drugs were found missing after 2-4-2007 i.e. after the applicant took charge nor is it his case that any of the exhibits which were called for by him through Constable Shyam Parab were found missing. On the other hand, according to PSI Punaji Gawas, the applicant, never entered the godown, nor took the keys of the godown from him. On the contrary, the charge report dated 20-10-2005 shows that all exhibits were handed over to PSI Sunil Gudlar who raised no dispute about their condition. now on 21-3-2010 to say that some unsealed packets were eaten by white ants, etc. 14. As regards disproportionate assets of the applicant, the information regarding the same certainly cannot be gathered by writing letters to all and sundry. The evidence as regards the same could have been collected by sustained interrogation of the applicant/accused and thereafter the same being made good by documentary evidence of purchasing of a car, a flat, etc. The accused and/or their wives cannot give evidence on such aspects. If the 13 applicant had purchased a car by taking Rs.5,00,000/- from Atala, the applicant could not be expected to have registered the same in his name. The person on whose name it is registered ought to have been interrogated to find out the truth and more evidence collected to prove that the said car in fact belonged to the applicant. Nothing in this regard is being pointed out to the Court by the Investigating Officer or the Public Prosecutor on his behalf. Till date, no statement under Section 161 of the Code(Code of Criminal Procedure, 1973) has been recorded of the said David @ Dudu and in the absence of that, I am of the prima facie view that what PSI Gudlar says now or would say in his evidence would be rendered totally hearsay. Likewise, the boy who came from Atala's Cyber Cafe and paid the bills of the Police Officers of ANC Police Station as well as of Anjuna Police Station has not been examined till date and when this position is pointed out learned Public Prosecutor submits that his statement would be recorded in the course of time. I have already noted that the investigations are going on for a considerable length of time and the statement of the said boy could have been recorded by now. The statement of the said Dudu or for that matter of the said boy have not been recorded so far either to keep gaps in the prosecution case or because of ignorance. I do not think that there is anyone in the State of Goa who is not prepared to believe that drugs are available in the market because of Police, politician and drug peddler nexus. Only persons who are connected with the said three classes, may protest against such a statement. That such a statement cannot be 14 easily proved, is a different matter but the State is expected in the course of investigations to collect sufficient material by direct or circumstantial evidence to prove the same. If the Police Department can send Police Inspectors north and east to investigate a simple case of attempted suicide, the Police Department could have certainly sent a responsible IPS Officer to record the statement of Atala's friend. The records show that an interview was recorded by P.T.I. of a lady who claimed to be a friend of the said Atala but till date her statement has not been recorded. The said lady is stated to have said that she has video footage of Atala's dealings with the Police and that she has also video footage of a goan politician's son coming to collect money from him, etc. Till date, her statement has not been recorded. Why ask C.B.I. to record her statement?Likewise statements of Ms. Niya N. Harmalkar pursuant to her complaint dated 1-2-2008 has also not been recorded. It could be that the said complaint was motivated. It could also be otherwise. Either way, the complaint certainly deserved to be looked into and the result, if favourable could be used as evidence in this case. Complaints of collecting hafta either by ANC PS or for that matter by other Police Stations is no news, as can be seen from several complaints made in that behalf, copies of which are available on record. Statements of the said complainants could have certainly been recorded to find out whether they could support the case of the Investigating Agency. The manner in which the statement of the said Shahish has been recorded does not make a happy reading. In his statement, it is recorded that “I remember the 15 name of ANC staff i.e. P.I. Ashish Shirodkar and Pokle were regular visitors and used to pay their bills”. If that be so, their bills could not have been paid by the boy who came to pay the bills from Atala's Cyber Cafe. It is not known as to why the I.O. or for that matter PSI Gudlar themselves did not download the video footage from the net. By arresting Atala first, when he could have been a witness against a present applicant and others, the I.A. has done much damage to their case for the said Atala after his arrest has remained ambiguous about the said video footage, if Goa 365, another channel is to be believed. If the video footage was the basis of the filing of the F.I.R. then it is the applicant who ought to have been arrested first and not the said Atala on 9-3-2010 even before the F.I.R. was lodged on 10-3-2010. There is no explanation whatsoever as to why the Investigating Agency waited to arrest the applicant until 18-3-2010 when he was very much available. If the drug peddlers as well as the Policemen sit on the same dock, without much evidence to connect them nothing may come out from the prosecution, if lodged. If certain unsigned documents by the applicant were found in the house of Dudu, no effort has been made to find out as to who had typed them and sent them to the said Dudu. It appears that the State is unwilling to hand over the investigations to an independent agency like the CBI because more skeletons may tumble out from the cupboard of the Police drugs dealers nexus. Although, the allegations are very serious the case does not appear to have been seriously investigated at all and in my view on the basis of the evidence which is now available it 16 would not be prudent to detain the applicant any further. 15. It may be stated that it is not only the gravity of the offence which matters in the matters of considering a bail application but also the nature of evidence which is produced in support of the charge. Considering the nature of the evidence presently available, I am inclined to admit the applicant to bail. He shall so be released upon execution of a bond of Rs.50,000/- with one surety in the like amount to the satisfaction of the N.D.P.S. Court and with a further condition that he shall not interfere directly or indirectly with any of the witnesses or the investigations of the case nor visit any of the coastal areas. He shall report to Dy.I.G.P. until the filing of the charge-sheet. Observations made herein are only