State Of Maharashtra & Ors vs Lalit Somdatta Nagpal & Anr

J U D G M E N T WITH Special Leave Petition (Crl.) No. 1101 of 2006 Special Leave Petition (Crl.) No. 4581 of 2006 and Special Leave Petition (Crl.) No. 4611 of 2006 ALTAMAS KABIR,J.

Five Special Leave Petitions, of which three have been filed by the State of Maharashtra, one by Lalit Somdatta Nagpal and one by Kapil Nagpal, have been taken up for hearing together as they involve common questions of law relating to the application of the provisions of the Maharashtra Control of Organized Crime Act, 1999 in respect of offences alleged to have been committed under Sections 3 and 7 of the Essential Commodities Act, 1955. In order to answer the above question, it is necessary to briefly set out the facts involved in these Special Leave Petitions. On 6th June, 2004 the Deputy Commissioner of Police (Enforcement), Crime Branch, Mumbai alongwith other officers, including the District Supply Officer, Kolhapur, Nayab Tehsildar, Taluka Karveer, Distt. Kolhapur, raided Vijayanand Petrol Pump, Kolhapur and seized two iron tanks of 12,000 and 6,000 litres capacity, greenish lubricating oil in 200 litres barrel, 45 kilos of white chemical powder in 5 gunny bags and ten motor tankers containing petroleum products and two empty tankers, worth Rs.77,14,195/-, and arrested 9 persons in connection therewith.

On the statement made by Ranjit Pandurang Desai, Nayab Tehsildar, Karveer Taluka, a case was registered at Karveer Police Station, Kolhapur, being C.R. No. 39/2004, under Sections 3 and 7 of the Essential Commodities Act, 1955 and under Section 3 of the Petroleum Storage and Distribution Act, 2000 against 11 accused persons. Out of the 11 accused persons 10 were arrested and produced before the Chief Judicial Magistrate, Kolhapur, and remanded to judicial custody on 7th May, 2004. On 20th May 2004, on the orders of the Director General of Police, the investigation into the alleged offence was transferred to CB (Control), Crime Branch, Worli, Mumbai.

On an application made by the prosecution for police custody of the accused persons, the Fast Track Court, Kolhapur, by its order dated 25th May, 2004 remanded the accused persons to police custody from judicial custody. On 27th May, 2004, Lalit Nagpal, Ranjana Nagpal, Anil Nagpal, Vijay Nagpal and Chetan Mehta moved the Sessions Judge, Kolhapur, for grant of anticipatory bail and although initially protection was given from arrest, on 14th June, 2004 the Sessions Judge rejected the anticipatory bail applications of all the applicants except that of Ranjana Nagpal, the wife of the accused Lalit Nagpal. The second anticipatory bail application filed by Anil Nagpal, Chetan Mehta and Lalit Nagpal by way of three separate Writ Petitions were rejected by the High Court. The Writ Petition filed by Vijay Nagpal was allowed while the others were directed to surrender before the Police on or before 20th August 2004.

The said Anil Nagpal, Lalit Nagpal and Chetan Mehta thus filed Special Leave Petitions against the order of the Bombay High Court and renewed their prayer for anticipatory bail before this Court. This Court also initially directed that the applicants be not arrested and directed them to attend the Police Station every day. Subsequently, however, on 14th December, 2004 the Special Leave Petitions were dismissed and the petitioners therein were directed to surrender and apply for regular bail before the Trial Court. Thereafter, on 19th January, 2005, Lalit Somdatta Nagpal filed Criminal Writ Petition No. 44 of 2005 in the High Court challenging the approval order dated 31st October 2004 passed under Section 23(1)(a) of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as "MCOCA") Accused Chetan Mehta also filed a writ petition, being No. 276 of 2004, in the Bombay High Court also challenging the approval order dated 31st October, 2004 under Section 23(1)(a) of the above Act.

The said two writ petitions were heard by the High Court along with Writ Petition No. 2562 of 2004 filed by the accused, Deepak Dwarkadas Mundado, on 2nd February, 2005. On the said date the writ petition of Deepak Mundada was permitted to be withdrawn and the remaining two writ petitions were adjourned till 10th February, 2005 and again till 17th February, 2005, when one of the other accused, Anil Nagpal, filed Writ Petition No. 146 of 2005.

Regarding the challenged thrown by Kapil Nagpal to the order dated 1st September, 2006 passed by the High Court directing him to surrender before the Investigating Authority within two weeks failing which his petition for quashing the FIR registered with Rasayani Police Station would stand dismissed, Mr. Lalit submitted that no ground had been made out to interfere with the same.

The submissions advanced on behalf of the respondents on this count must, therefore, fail.

In addition to the above, a glance at the permission sought by P.I.L.C.B., Raigad, on 18th August, 2005 seeking permission for registering an offence under Section 1 (ii) MCOCA 1999 against Lalit Nagpal, Anil Nagpal, Kapil Nagpal and one Parasnath Ramdular Singh will reveal that such permission was being sought for, as far as Kapil Nagpal is concerned, in respect of an offence allegedly under Section 63 of the Sales Tax Act, which in our opinion would not attract the provisions of the MCOCA.

We, therefore, have no hesitation in holding that as far as Kapil Lalit Nagpal is concerned, the provisions of the MCOCA have been misapplied to him.

As far as Special Leave Petition (Crl.) No. 4581/2006 is concerned, the same has been filed against the order passed by the Bombay High Court rejecting the petitioner's prayer for grant of bail. As will be seen from the records, the petitioner had earlier applied for grant of anticipatory bail which was rejected by the Bombay High Court. In the Special Leave Petition filed against the said order of rejection, this Court also on 14th December, 2004 rejected the petitioner's prayer for grant of anticipatory bail. This Court however granted 15 days' time to the petitioner to surrender and to apply for regular bail. Despite the said order, the petitioner did not surrender till 1st July 2005, and thereafter applied for bail which was rejected on the ground that the petitioner had violated the order passed by this Court on 14th December, 2004 and had absconded for almost six months before surrendering. The order passed by this Bombay High Court rejecting the petitioner's prayer for bail was again challenged before this Court and the same was once again dismissed on 20th January, 2006 with the observation that such dismissal would not bar the petitioner to approach the trial court afresh. Thereafter, the petitioner moved a fresh application for bail before the Sessions Court which was rejected on 3rd March, 2006. The petitioner challenged the order of the Sessions Court in the Bombay High Court which once again dismissed the petitioner's prayer for grant of bail on the ground that the circumstances had not changed except that the prayer for enlarging the petitioner on had been made bail on medical grounds. While rejecting the petitioner's prayer for bail, the High Court observed that on the basis of the medical report, no case had been made out for enlarging the petitioner on bail. However, the prayer as regards shifting the applicant to a particular hospital would have to be considered on its own merits.

Special Leave Petition (Crl.) No. 4581/2006 is directed against the said order of the High Court refusing to grant bail to the petitioner.

It may be indicated that during the pendency of the writ petition, this Court on a consideration of the medical condition of the petitioner permitted him to be treated in a private hospital, though under the custody of the respondents. We understand that the petitioner continues to be hospitalized. Having regard to the fact that we have dismissed the Special Leave Petitions filed by the State of Maharashtra against the order of the Bombay High Court holding that the provisions of MCOCA had been misapplied to the facts of the case, the stringent provisions regarding bail under the MCOCA 1999 will no longer be attracted in this case. Since the petitioner has been under arrest since the date of his surrender on 1st July, 2005, and having further regard to his medical condition, we direct that the petitioner, Lalit Somdutt Nagpal, be released on bail to the satisfaction of the Chief Judicial Magistrate, Kolhapur. He will surrender his passport to the Chief Judicial Magistrate, Kolhapur, until further orders of the magistrate and will not leave the country without the prior permission of the magistrate and shall report to the Investigating Officer of the different cases as and when called upon to do so. Special Leave Petition (Crl.) No. 4581/2006 is accordingly allowed and the order of the Bombay High Court dated 14th July, 2006 refusing the petitioner's prayer for grant of bail is set aside.

As far as Special Leave Petition (Crl.) No.4611/2006 is concerned, since we have held hereinbefore while deciding the Special Leave Petitions filed by the State of Maharashtra that Kapil Lalit Nagpal had been wrongly proceeded against under the provisions of the MCOCA 1999, we allow the special leave petition and set aside the order passed by the Bombay High Court on 1st September, 2006 in Crl. Writ Petition No.2183/2005 with a direction to hear out the petitioner's said writ petition in accordance with law.

There will be no order as to costs in any of these special leave petitions.