:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO. 2670 OF 2008 APPLICATION NO. 2670 OF 2008 APPLICATION NO. 2670 OF 2008 Shri Dilip Pandurang Kamath Age - 47 years, R/at Commins College Road Shivanand Road, Flat No.9 Karve Nagar, Pune - 52. Presently in Judicial Custody at Yerwada Central Jail, Pune. ... Applicant. V/s. 1. The State of Maharashtra. 2. C.B.I. Kitab Mahal, C.S.T. Mumbai. ... Respondents. Mr. Dilip Pandurang Kamath, Applicant in-person present. Mr. R.B. Thakare and Mr. A.M. Chimalkar, Special Public Prosecutor for C.B.I. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 10TH 10TH 10TH NOVEMBER 2008. NOVEMBER 2008. NOVEMBER 2008. P.C. P.C. P.C. :- :- :- . This is the second Application for bail. 2. The Applicant is Accused No.44 in M.C.O.C. Special Case No.02 of 2003, arising out of Bund Garden Police Station C.R. No.135 of 2002, pending on the file of Learned Special Judge for M.C.O.C. Act, Pune. 3. The Applicant was arrested on 13.06.2003 and he is in jail since last 5 years and 2 months without trial. 4. On 22.01.2008 the charges were framed against :2: applicant for alleged offences punishable u/s. 3(2), 3(3), 3(4) and Sec. 24 of M.C.O.C. Act and Sec. 13(1)(d) of P.C. Act, 1985. 5. The first Bail Application of the Applicant was rejected by this Court on 30.01.2006 in Cri. Application No.4319 of 2004. 6. The SLP filed by the Applicant was withdrawn by the Applicant with liberty to approach appropriate Court at appropriate time. 7. The Applicant/Accused applied for bail before the Special Court but even that was rejected by the order dated 21st July 2008. 8. The Applicant states that there are changed circumstances and that is how the present application is maintainable. The changed circumstances are as pointed out in the grounds of the present Application. They are elaborated during oral arguments by the Applicant, who is appearing in-person. Firstly, it is stated that there are decisions on Section 21(4) of the M.C.O.C. Act. Reliance is placed upon an order passed by the Andhra Pradesh High Court and the decision of this Court in Criminal Appeal No.3704 of 2006. The second changed circumstance is that the Special Court has re-framed the charges on 22nd January 2008. It is submitted that the charge under :3: Section 3(1)(ii) of M.C.O.C. Act is not framed and it is observed that there is no material to do so. Thus, the Applicant is held not to be indulging in continuing unlawful activity of printing and sale of fake stamp papers. Therefore, the bar under Section 21(4) of the M.C.O.C. Act does not apply. Reliance is placed upon several Decisions of this Court. Thereafter, it is contended that the charges as framed by the Trial Court do not indicate that the Applicant is guilty of being a part of the organized crime syndicate. It is contended that for the offences under Section 3 being committed, the ingredients of Section 2(1)(d) and Section 2(1)(e) of the M.C.O.C. Act have to be attracted. 9. Lastly, it is contended that if there is no element of physical violence, then, there is no illegal activity nor it can be said to be continuing unlawful activity. Reliance is placed upon certain decisions of this Court. It is also contended that there are several accused who have been granted bail after the orders passed in the Applicants earlier Bail Application. The aspect of the trial not commencing but being delayed and the Applicant in Custody is also pressed before me. For all these reasons it is prayed that the Applicant be enlarged on bail. 10. On the other hand, it is contended by Mr. Thakare, learned Advocate appearing for the Respondents that there :4: is no merit in the present application. It is urged by Mr. Thakare that all contentions which are now raised have been already considered in the earlier order. Same arguments were canvassed and this Court has rejected the application. He submits that the Applicant challenged that order by filing a Special Leave Petition before the Hon’ble Supreme Court of India but he has withdrawn the same. Subsequently, he has filed another application before the Trial Court and the Trial Court has rightly rejected the application. Mr. Thakare submits that there are no changed circumstances. This Court has clearly observed that there is a prima-facie case and that the Applicant is guilty of the offences which are alleged against him. Therefore, the bail cannot be granted. The legal position also has been noted by this Court. Mr. Thakare has invited my attention to the affidavit in reply filed by the prosecution and contended that this is not a case where the Applicant can be held to be prima facie guilty only of the charge under Section 24 of the M.C.O.C. Act. The acts alleged against the Applicant are such that there is strong prima facie case and it can be therefore, presumed that he is guilty of offence punishable under Section 3(2), Section 3(4), Section 3(5) and Section 4 of the said Act. Mr. Thakare has contended that merely because the accused is in custody for a long period does not mean that the bail has to be granted. Merely because the trial has not commenced does not mean that the bail must be granted. The reasons why the trial could not :5: commence are set out in paras 7 to 11 of the affidavit in reply. For all these reasons, Mr. Thakare submits that the application be rejected. 11. I have perused the application, the written arguments and the affidavit filed by the prosecution so also the decisions brought to my notice. 12. It is clear from the order passed on 30th January 2006 that the Applicant appeared in person and argued elaborately. His arguments that there is no case made out as far as the Applicant is concerned is specifically rejected. It is held that he is prima facie guilty of actively supporting and assisting the organized crime syndicate and the prime accused Telgi. He has received pecuniary benefits. The order proceeds to hold that the Applicant is prima facie guilty of the offence committed under Section 3(2) of the M.C.O.C. Act. 13. Now, in this application the Applicant has urged that the term "continuing unlawful activity" and "organized crime" are interpreted by the Supreme Court in Lalit Nagpal’s Case. He has also invited my attention to an order passed on 29th April 2008 in the matter of Sambhaji Kudale. He has urged that there should be two charge-sheets against the accused during the preceding period of 10 years and he should be involved in continuing unlawful activity. Only then, he can be said to be :6: prima-facie guilty of the offence of continuing unlawful activity. He has applied for release on bail not only on this ground but that the trial has not commenced and that there are other accused in the same case who have been enlarged on bail. Thus, he has applied for bail also on the grounds of parity. 14. The order passed by the Trial Court shows that charges have been framed as far as the Applicant is concerned not only under I.P.C. but under Section 3(2), Section 3(3), Section 3(4) and Section 24 of M.C.O.C. Act. Apart from the charges that are framed under the provisions of Prevention of Corruption Act, the Trial Court has observed that there may not be any case as far as the Applicant is concerned of counterfeiting or performing any part of the process of counterfeiting Government Stamps or preparing counterfeiting Government Stamps or any instrument for the purpose of counter-feiting Government Stamps apart from sale of the same. Therefore, the Applicant is held not to be prima facie guilty of the offence under Section 3(1)(ii) of M.C.O.C. Act. However, the Trial Court has observed that there is enough material to frame charges against the Applicant for abetting and unlawfully facilitating the commission of an organized crime. He has harboured and concealed the members of the organized crime syndicate. He has used his position as a public servant and rendered help and support in the commission of organized crime by :7: the prime accused and his gang. Thus, there is prima-facie material about the Applicant’s involvement in the activities of the organized crime. 15. It is the case of the Applicant that when such is the nature of the charges, then, Section 21(4) of M.C.O.C. Act is not attracted. Merely because the charges are framed in the above manner does not mean that the Applicant is straightway entitled to bail. There is no change as far as the application of Section 21(4) of M.C.O.C. Act to the Applicant. In fact, this aspect is not seriously disputed before me. the Applicant is not being proceeded presently u/s. 3(1)(ii) but other sub-Sections of Section 3 of M.C.O.C. Act. That means he will still have to make out a case for bail u/s. 21(4) of M.C.O.C. Act. Merely because the Trial Court has made some observations in para 50 of its order does not mean that the Applicant is entitled to be enlarged on bail. 16. The Applicant presented another application for bail after the charges were framed and the Trial Court has rejected the said application. The very grounds which are raised before me were raised before the Trial Court. 17. There is merit in the contention of Mr. Thakare that there are no changed circumstances so as to enable this Court to enlarge the Applicant on bail. If, there were really such circumstances which would enable this :8: Court to take a view that Section 21(4) is not applicable, then, possibly this application could have been considered. However, a perusal of the present application for bail demonstrates that the Applicant does not dispute that Section 21(4) of the M.C.O.C. Act applies and the present application will also have to be considered on the touchstone of the same. If that was not to be the case, then the Applicant would not have pressed the ground of his prolonged custody and delay in commencement of the trial as changed circumstances. 18. In my view, all arguments which have been raised with regard to the prima facie involvement of the Applicant have been considered in my earlier order. In paragraphs 34 and 35 of the earlier order, the argument of the Applicant that at the most he is guilty of an offence under Section 24 of the M.C.O.C. Act has been set out. That has been considered and rejected specifically. The Applicants personal difficulties are also considered. Further, he having spent considerable time in custody is also an aspect which is noted by me. Thereafter, elaborate arguments of the prosecution have been noted on all points. The Supreme Court decisions including the one rendered in R.S. Sharma’s case has been referred to by me and applying the principles laid down in the said decisions, I have rendered my prima facie conclusions in para 48 of the earlier order. In para 49 the factual position has been noted. In para 51 of my earlier order I :9: have referred to several statements and held that the statements demonstrate that the Applicant has prima facie assisted the organized crime syndicate by not apprehending the prime accused and restraining their unlawful activities. This is what is observed by me in paragraphs 52 to 54 :- "52. This aspect is prima facie reflected from the statements which were brought to my notice including that of Kishore Dhingra. He has elaborately stated about facilities and concessions that were extended to the prima accused. It is not at this stage to decide as to how and in what manner this evidence has to be appraised and appreciated so also its credibility in law. Suffice it to state that at this stage, it cannot be said that there is nothing on record which would involve the applicant not only in the acts of omission or commission on his part as a police officer but also as a person actively assisting and/or abetting the unlawful activities of the organized crime syndicate. In every such case, depending upon the materials, it can always be stated that by not proceeding against the prime accused expeditiously the activities would go on unchecked and undisturbed. In the instant case, it is not as if the applicant is unaware of the cases arising out of fake stamps and stamp papers. Once :10: he is part of a unit which is investigating such offences then, it is expected of officers like applicant to take timely action in such a serious case so that activities of the crime syndicate are checked and further damaged prevented. 53. In the instant case what appears from the statements and materials produced is that the applicant despite being aware of case after case against the crime syndicate has not acted diligently, apart from honestly by apprehending the prime accused and there is further material to show prima facie that this was done intentionally and in lieu of pecuniary advantages or benefits to the applicant. It is not only persons such as informant Kishore Dhingra but others including officers in the department who have deposed about the role of the applicant and I cannot discard that material as is suggested by the applicant. 54. The advantages gained, pecuniary and otherwise, by the applicant due to his closeness and proximity to the prime accused are, prima facie, demonstrated in this case. The organized crime syndicate was during the course of its unlawful and illegal activities actively assisted by the applicant is the charge. He does not come on the scene after the activities are detected but :11: is in know of things throughout." 19. For these reasons, I am of the view that there are no changed circumstances, which would enable me to enlarge the Applicant on bail. 20. Reliance placed by the Applicant on same orders is of no assistance to him. Merely because one of the charges alleged against him in the charge-sheet have not been framed does not mean that the Applicant can be enlarged on bail straightaway. 21. The Andhra Pradesh High Court was considering applicability of A.P. Control of Organized Crime Act, 2001. While making the observations relied upon by the Applicant, the Court relied upon the record and the allegations against the Petitioners before it. The Petitioners allegedly were selling stamps which are spurious. There is no other crime which has been registered against the Petitioners before the Andhra Pradesh High Court. It is in that context that the observations relied upon by the Applicant have been made by the Andhra Pradesh High Court. They will not assist the Applicant before me. 22. In Sambhaji Kudale’s case this Court once again perused the record and observed that Sambhaji had close connection with Appa @ Prakash Londhe. The case does not :12: pertain to fake stamps but whether the Applicant before this Court (Sambhaji) had in the company of the said Appa Londhe and co-accused, created terror in the locality. This Court has in para 3 referred to the factual material and ultimately concluded that the charge-sheets filed would demonstrate that the Applicant Sambhaji cannot be said to be indulging in continuing unlawful activity as understood into Section 2(1)(d) of the M.C.O.C. Act. Therefore, he was enlarged on bail. 23. In Lalit Somdatta Nagpal’s case, the Supreme Court referred to the provisions of Essential Commodities Act and M.C.O.C. Act and thereafter, made the observations in paragraphs 61 and 62 on the basis of the factual materials pertaining only to one accused Kiran Nagpal. The Supreme Court reversed the finding of this Court on applicability of M.C.O.C. Act. The interpretation placed by the Supreme Court on M.C.O.C. Act is of no assistance at this stage. The Applicant reads the observations out of context and it is not permissible to read them in such manner at this stage. Therefore, the decision in Lalit Nagpal’s case will also not assist the Applicant. Some of the observations therein, would be contrary to the submissions made before me. 24. The other decision in the matter of co-accused will also not be of any assistance as the Applicant’s case will have to be gone into and decided on the basis of the facts :13: peculiar to him. 25. Bharat Gavhane’s case is also a decision on the facts peculiar to Gavhane. That was an appeal. That was challenging the order passed by the Trial Court holding that the case must go back to regular Criminal Court as there is nothing to indicate that M.C.O.C. Act applies to the said accused. While deciding the correctness of this finding and conclusion, the observations in para 43 have been made. They must be seen in the backdrop of the peculiar facts and not having a general application. A reading of paragraphs 39 to 42 would make it clear that Bharat Gavhane’s case is also peculiar and therefore, of no assistance to the Applicant. The Court merely considered the argument of applicability of M.C.O.C. Act on the basis of relevant factual material and the wording of the Section. 26. The other arguments with regard to delay in commencement of trial and the Applicant being in custody for long time have been already dealt with. There are no changed circumstances and these grounds cannot be urged again and again. 27. In the result, the application fails and is hereby dismissed. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)