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CASE NO.:

Appeal (crl.) 523 of 2005

PETITIONER:

Ranjitsing Brahmajeetsing Sharma

RESPONDENT:

State of Maharashtra & Anr.

DATE OF JUDGMENT: 07/04/2005

BENCH:

N. Santosh Hegde,B.P. Singh & S.B. Sinha

JUDGMENT:

J U D G M E N T

(Arising out of SLP (Crl.) No.3879 of 2004)

S.B. SINHA, J :

Leave granted.

Interpretation and application of the Maharashtra Control of

Organised Crime Act, 1999 (for short 'MCOCA') is involved in this appeal

which arises out of a judgment and order dated 16th July, 2004 passed by a

learned Single Judge of the Bombay High Court in Criminal Application No.

572/2004 refusing bail to the Appellant herein.

The Appellant is a former Commissioner of Police. He was posted in

the city of Pune in the said capacity between 30th April, 2000 and 31st

December, 2000. He was appointed Commissioner of Police, Mumbai on or

about 1st January, 2003. Allegedly, he was so posted upon supercession of a

few officers. A disciplinary proceeding was initiated against him on

25.11.2003 but without taking any further action thereupon, he was allowed

to superannuate on 30.11.2003.

One Abdul Karim Ladsa Telgi (hereinafter referred to as 'Telgi') was

arrested and proceeded against for alleged commission of offence of printing

counterfeit stamps and forgery in various States including the State of

Maharashtra. He was lodged in Bangalore Jail since November, 2001.

During the Appellant's tenure as Commissioner of Police, Pune, fake

stamp papers worth Rs. 2.98 lacs were seized whereupon a first information

report bearing C.R. No. 135 of 2002 came to be registered at Bund Garden

Police Station, Pune under Sections 120-B, 255, 249, 260, 263(a) and (b),

478, 472 and 474 read with Section 34 of the IPC. The said offence was

being investigated by one Mr. Deshmukh but having regard to the magnitude

thereof, three teams lead by one Mr. S.M. Mushrif, Addl. Commissioner of

Police (Crime) were formed. The said Mr. Mushrif is said to be a brother of

a Minister of the Government of Maharashtra. On or about 16.07.2002,

however a proposal was mooted to invoke Section 3 of the MCOCA and

upon obtaining the opinion of Senior Public Prosecutor therefor, the same

was invoked.

One Mr. Mulani, Assistant Commissioner of Police (Crime Branch)

had been included in the field work team along with other officers in

connection with the investigation of the said crime. Overall supervision of

the said crime, however, was entrusted to one Mr. Maheshgauri, Joint

Commissioner of Police.

On the ground of alleged involvement in the aforementioned case, the

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Appellant was arrested on 1.12.2003 whereafter a remand application for 15

days of police custody was made but he was remanded to police custody

from 2.12.2003 to 9.12.2003 and thereafter to judicial custody. His

application for bail was rejected by the Special Court, Pune by an order

dated 19.1.2004 whereupon he filed an application for grant of bail before

the High Court. By reason of the impugned order, the said application has

been rejected.

Before adverting to the rival contentions raised in this appeal, we may

notice some admitted facts.

On the basis of the information received by the Appellant and on his

direction to intercept the car and on his telephonic instruction thereabout, a

first information report dated 7.6.2002 was lodged. During the course of the

investigation of the said case, number of places were raided and huge

quantity of stamps, printing machinery worth Rs. 21,28,47,63,824/- were

seized from several accused persons.

The provisions of the MCOCA were invoked against Telgi who

figured as accused No. 23 and Mr. Shabir Sheikh, accused No. 25 on the

ground that a period of 90 days was coming to an end on 3.9.2002. On or

about 22.11.2002, Mr. Jaiswal, DIG, SRPF, Mumbai granted an approval to

invoke the provisions of the MCOCA whereupon DCP, Dr. Jai Jadhav took

over investigation of the said case.

Before the High Court, the role of the Appellant was said to be

rendition of help and support to organized crime syndicate by certain acts of

omission and commission, i.e., by rendering help or support to Mulani, a

co-accused when he was Commissioner of Police, Pune and through API-

Dilip Kamat, co-accused while he was the Commissioner of Police,

Mumbai.

The allegations against the Appellant as have been noticed by the

High Court are as under:

"I. The applicant knew the adverse antecedents of

Mulani since 1996. The respondents have relied on

the following circumstances and the sequence of

events in support of their case against the

applicant.

(a) A complaint about corruption was received in

respect of Mulani on 14.9.1996, who was then the

Sr. Inspector of Police at Dongri Police Station,

Mumbai. A copy of this complaint was also

received by the applicant, who was then working

as Jt. Commissioner of Police, Mumbai and bears

his signature on it. The said complaint was

forwarded by the applicant to Anti Corruption

Bureau, Mumbai.

(b) In the affidavit dated 29.10.2002 filed by the

applicant in his capacity as Commissioner of

Police, Pune before the Maharashtra State

Administrative Tribunal (MAT) against Mulani he

has categorically affirmed that conduct of Mulani

was found to be highly suspicious in sensational

murder case of one Faizulla Khan.

(c) On 6.9.2002, the Investigation was handed over

to DCP Jay Jadhav as by then the provisions of

MCOCA were invoked against two of the Accused

in C.R. No. 135/2002. New teams were formed for

the investigation under MCOCA. While forming

the team, the applicant included Mulani's name in

the investigation team in connection with the

investigation of C.R. No. 135/2002 (Page No.

12694 of chargesheet) though he was specifically

told by DCP Jay Jadhav not to include him in the

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team (statement of CDP Jay Jadhav Page 11941 of

the Chargesheet). It was on the pretext that PI

Deshmukh was too overburdened being in charge

of Bund Garden police station and it was only

Mulani who knew all the facets of the case.

(d) The investigation revealed that Ashok Basak,

Addl. Chief Secretary (Home), State of

Maharashtra (for short, "Basak") had informed the

applicant on 6.9.2002 about Mulani being in

telephonic contact with Telgi, who was then

lodged in Central Jail at Bangalore and his tainted

role in fake stamp case. This information was

passed on to Basak by Adhip Choudhari, Addl.

Chief Secretary (Home), Government of

Karnataka. The applicant had assured Ashok

Basak that he would remove Mulani from

investigation. Despite this, Mulani was not

neutalised by the applicant and he was allowed to

continue in the investigation team.

(e) There is no dispute that atleast on 6.9.2002

Basak had shared the said information with the

applicant.

(f) A complaint of corruption dated 15.7.2002

received from President, Pune Forum Citizen,

against ACP Mulani, was received by the applicant

on 31.8.2002.

(g) Mulani was transferred to Jat, Dist-Sangli by

the order of the Government dated 4.9.2002. This

order was received in Pune on 6.9.2002. The order

of transfer of Mulani was not served till he had

obtained a stay against the transfer from the MAT

on 6.9.2002 (Page 12843).

(h) The Stay was for transfer to JAT Division and

not for internal transfer. Yet, Mulani was not

transferred from the investigation of C.R. No.

135/2002, on the other hand, Mulani was sent to

Bangalore on 18.9.2002 all alone without the I.O.

(i) The Government of Maharashtra had

constituted Special Task Force (STF) for enquiring

into all the pending cases relating to counterfeit

stamps in the State of Maharashtra and the

applicant was appointed as the Chairman to head

the STF. Not a single meeting of this STF was

convened by the applicant.

(j) Mulani was allowed to be associated with the

investigation till 30.9.2002 and he was transferred

to Special Branch only on 30.9.2002 (Page No.

12846).

(k) On 10.10.2002 certain names were

recommended for reward in connection with the

investigation of C.R. No. 135/2002. Although

Mulani's name was not listed initially, it was

specifically added by the applicant in his own

handwriting.

(l) The applicant did not ensure the filing of a

properly reasoned chargesheet in C.R. No.

135/2002 P.S. Bund Garden and did not ensure the

timely application of MCOCA to the whole case.

Reference statement of the Director General of

Police, Maharashtra Shri S.C. Malhotra. The filing

of the chargesheet was hurried through by the

applicant (Reference statement of Kishore Jadhav -

Page 11947).

II. On this background, on and from 1.1.2003 the

applicant was posted as Commissioner of Police,

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Mumbai.

(a) The applicant was well aware about various

cases of stamps scam which were pending in

Mumbai, while he was working as Jt.

Commissioner, Mumbai during the year on

8.6.2002, he had sent a wireless message calling

for the details of these cases.

(b) On 9.1.2003, DIG Jaiswal alongwith Addl.

D.G. Karnataka Shri Kumar personally met and

informed the applicant about Telgi enjoying all

comforts in his flat at Cuffe Parade, Mumbai. He

ought to have immediately taken coercive action

and ensured its implementation.

(c) Thereafter, a written report (Page 12181) dated

10.1.2003 was sent by DIG Jaiswal setting out in

detail the facts noticed by him during their visit to

Cuffe Parade flat. On this letter, the applicant had

made a noting that API Kamat and the constables

be placed under suspension with immediate effect.

However, the record shows that they were not

suspended till 15.1.2003 and no active steps were

taken by the applicant to ensure the immediate

suspension though it was within his powers to

ensure that the same was done with immediate

effect. The noting dated 15.1.2003 on (Page Nos.

12202 and 12203) clearly shows that till 15.1.2003

these police personnel were not suspended.

(d) It is significant to mention that DIG Jaiswal in

his report had specifically voiced an apprehension

that a big seizure may be concocted in order to

protect the erring police officer, API Dilip Kamat

and in fact, this apprehension came though because

of the conspiracy that was hatched between the

officials of Crime Branch, Mumbai (Statement of

ACP Padwal at Page No. 11087).

III. According to the prosecution, following

circumstances could not be explained by the

applicant.

(a) The fact that he had a closed door meeting with

A.K. Telgi in isolation between himself and

A.K.L. Telgi only to the exclusion of other high

ranking officers (Statement of ACP Supriya Patil

at Page No. 11912, DCP (H.Q.) Koregaonkar at

Page No. 11898 and DCP Jay Jadhav at Page No.

111940).

(b) The applicant knew A.K.L. Telgi even when he

was at Mumbai earlier is also apparent from the

statement of DCP Vasant Koregaonkar (Page No.

11898)

(c) Brain Maping (P-300) of AKL Telgi, shows

that he had given positive responses to the question

relating to payment made to the applicant, favour

shown by the applicant in Pune cases and facilities

provided in Mumbai custody by the applicant

(Page No. 12960 to 12963)."

The plea taken by the Appellant herein about his innocence was

rejected by the High Court upon arriving the following findings:

(i) Despite possession of powers which he could have used against

accused involved in the case, as also against the erring officers, he

protected and projected Mulani and Kamat as good and responsible

officers. The Appellant was aware of the tainted background and

adverse antecedents of Mulani and both the accused visited Bangalore

with him. After the provisions of the MCOCA were invoked and Dr.

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Jai Jadav was appointed as investigating officer, the name of Mulani

was included in the investigation team by the Appellant herein. A

calculated attempt was made by the Appellant herein to continue

Mulani in the investigation team and was assigned responsible role to

play. Despite his transfer to Jat, district Sangli by the order dated

4.9.2002 which was received on 6.9.2002, Mulani was not neutralized

till 30th September, 2002 although the Appellant had received an

information from the Additional Chief Secretary,

Ashok Basak that Mulani had been contacting Telgi telephonically

who was then lodged in Central Jail.

(ii) "Instead, he allowed Mulani to continue in the investigation team

even after 6.9.02, this lapse on the part of the applicant under any

circumstances cannot be termed as innocent, innocuous and

inadvertent. This observation becomes stronger if we look at the

subsequent events, i.e. overtacts of the applicant after 6.9.02. After

6.9.02 Mulani was continued in the investigation team. He was sent to

Bangalore all alone on 18.9.02. When a proposal was placed before

the applicant to recommend names of officers for rewards for their

outstanding role in the fake stamps case consisting of nine names, the

applicant on 10.10.02 included the name of Mulani in his own

handwriting in the said list of officers. This cannot be termed as

innocent dereliction of duties. At every stage it, prima facie, shows

that there was a calculated attempt on the part of the applicant to

continue Mulani in the investigation team and see that he is projected

as most efficient officer despite the knowledge of his adverse

antecedents and the tainted role in the investigation of fake stamps

case."

(iii) "The facts of the case would go to show that his association with

Mulani were with actual knowledge or atleast there are reasonable

grounds to believe that the applicant was aware that Mulani was

engaged in assisting the organised crime syndicate of Telgi."

(iv) "In my opinion, the acts and commissions on the parts of the applicant

in helping and supporting Mulani and Kamat would, prima facie, fall

within the first part of Section 24 and therefore it would not be correct

to state that Section 24 is not attracted. The role of the applicant

clearly demonstrates that he rendered help and support to the member

of an organised crime syndicate."

(v) "In so far as "Cuffe Parade flat" episode is concerned, it is true that

the applicant took over as Commissioner of Police Mumbai on

1.1.2003. The custody of Telgi was with Mumbai police from

20.10.02 to 21.1.03. However, fact remains that on 9.1.2003, DIG

Jaiswal along with Addl. D.G. Karnataka-Shri Srikumar had

personally met the applicant and informed him about Telgi's enjoying

all comforts in his flat at Cuffe Parade, and conducting his unlawful

activities on mobile phone, requesting him to take immediate coercive

action and ensure its implementation."

(vi) As regard application of the provisions of the MCOCA, the High

Court was of the opinion that as the Appellant knowingly facilitated

the commission of an organized crime through Mulani at Pune and

Kamat at Mumbai, prima facie, he committed an offence under

Section 3(2) of the MCOCA and having abetted them also committed

an offence under Section 4 thereof.

Submissions of Mr. V.R. Manohar, learned senior counsel appearing

on behalf of the Appellant are as under:

(a) The Appellant did not include Mulani in the investigating team. In

fact he was included in the field track team by Mr. Mushrif for the

purpose of tracing and arresting accused persons which does not come

within the purview of the investigation of the offence or interrogation

of the accused.

(b) As regard the allegation regarding abetment of Kamat, it was pointed

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out that when custody of Telgi was taken by Mumbai Police between

20th October, 2002 and 21.st January, 2003, one Mr. M.N Singh was

the Commissioner of Mumbai Police during which period Telgi was

allegedly not kept in custody and was staying in his own flat or hotel

and only on or about 9th January, 2003 when Mr. Jaiswal upon visting

the flat of Mr. Telgi found out the same and brought it to the notice of

the Appellant orally whereupon the order of suspension was passed on

telephone by him. On 10th January, 2003 which happened to be a

Friday, Jaiswal addressed a letter to the Chief Secretary, Maharashtra

with a copy to the Appellant which was received in his Office on 12th

January, 2003 and on that day itself an order of suspension was passed

but the Joint Commissioner actually placed Kamat and others on

suspension on 15th January, 2003.

(c) Even during the raids made in the Bhiwandi Godown on the night of

9th January, 2003 seizure of stamps worth Rs.820 crores was made,

out of which some were found to be genuine ones and, thus, such

seizures whether directed against Telgi or Sheikh having resulted in

demolition of Telgi empire, the Appellant cannot be said to have aided

or abetted the commission of any offence. In any event, having regard

to the finding of the learned Single Judge that the Appellant thereby

did not aid or abet Telgi who was proceeded against under MCOCA,

but merely abetted the abettors and, thus, the provisions thereof are

not applicable.

(d) So far as alleged acts of omissions and commissions on the part of the

Appellant between the period 9th January, 2003 to 15th January, 2003

are concerned, even in the chargesheet he is said to have only aided

Mulani and, thus, the provisions of the MCOCA are not applicable.

(e) As regard the allegations that the Appellant continued to keep Mulani

in the investigation team, our attention has been drawn to the fact that

immediately after the order of transfer was passed on 4th September,

2002, Mulani moved the Administrative Tribunal and obtained an

order of stay on 6th September, 2002 which was in the following

terms:

"The Applicant, who is working as Assistant

Commissioner of Police, Crime Branch, Pune has

to retire within about 11 months. His service

record seems to be very good. Hence transfer

order of the applicant dated 04-09-2002 is stayed

until further orders. Respondents to file a reply."

It is only on that date, the Appellant was informed by Shri Basak

about Mulani's integrity. Mulani was pulled out of the Crime Branch

and posted in a Special Branch by the Appellant despite threat of

contempt and in fact a contempt petition was filed by Mr. Mulani in

the Maharashtra State Administrative Tribunal, at Mumbai.

(f) Even the Director General of Police had certified Mulani as an

excellent officer in the year 2003 and upon invocation of MCOCA,

Dr. Jai Jadav was appointed as investigating officer. Though he was

required to find out suitable officers to be included in his team, Dr. Jai

Jadav made inquiries from the Appellant as also the Joint

Commissioner, as to the names of the suitable officers therefor and the

name of Mulani was suggested. Thus, it would not be correct to

contend that Mr. Mulani was kept in the investigating team by the

Appellant.

(g) Even assuming that there had been gross dereliction or carelessness on

the part of the Appellant, there is nothing on record to show that the

Appellant had benefitted himself in any manner whatsoever or had the

requisite mens rea.

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As regard filing of chargesheet against the wife, daughter and brother

of Telgi, there had been difference of opinion between Mushrif and

Deshmukh wherewith the Appellant was not involved. Mr. Jaiswal

prejudged the Appellant's guilt.

(h) As regard initiation of disciplinary proceeding, our attention was

invited to the fact that the Special Investigation Team (SIT) was

constituted on 2nd November, 2002 in the following terms:

"Government Resolution : Government has

decided to create a Special Investigation Team

(S.I.T.) to make in-depth investigation and follow-

up of action in bogus stamp case headed by Shri

S.K. Jaiswal, Deputy Inspector General of Police

S.R.P.F., Mumbai. He will be assisted by one

Deputy Commissioner of Police, one Assistant

Commissioner of Police, and three inspectors of

Police. The names of these team members will be

decided by the Director General of Police. The

infrastructural support in terms of manpower,

vehicle and communication, etc., will be provided

by the Pune City Police.

The team will report to Shri A.K. Agarwal,

Additional Director General of Police, C.I.D.,

Pune.

The Special Investigation Team will also

look into the charges made by Shri Mushrif,

Additional Commission of Police, Pune."

Mr. Jaiswal found the Appellant's guilt of dereliction of duty as early

as on 3rd April, 2003 and despite the limited jurisdiction of the Special

Investigation Team, he exceeded his brief implicating the Appellant.

In this connection our attention has also been drawn to the

recommendation made by SIT against various persons who do not

figure as accused, viz., Prakash Deshmukh, Ashok Kamble, Kishore

Jadhav, DCP Dr. Jai Jadhav, Vasant Koregaonkar which are as under:

"(v) Number of acts of omission and commission

during the course of investigation lie squarely at

door of Senior formations of Pune City Police.

This investigation was extremely crucial as the

case had national ramifications and the financial

structure of the State of Maharashtra and Govt. of

India was being undermined systematically.

Hence, it is for the Govt. to consider appropriate

action against Shri S.M. Mushrif, Shri M.S.

Maheshgauri and Shri R.S. Sharma for their

several acts of omission and commission as

detailed earlier."

It has been pointed out that despite such adverse comments both

Mushrif and Maheshgauri have been cited only as witnesses and, thus,

the Appellant was discriminated against.

(i) As regard application of MCOCA, the learned counsel would contend

that the provisions thereof cannot be given such wide interpretation as

has been done by the learned Single Judge.

(j) As Mulani never visited Bangalore alone, the learned Judge

committed a factual error in this behalf.

(k) As regard recommendations for grant of reward in favour of Mulani, it

was pointed out that the learned Judge had misread and misinterpreted

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the context in which such recommendation was made. It was pointed

out that DCP Zone II on 10.10.2002 gave a list of officers who have

done the best works which is as under:

"(1) P.I. Shri Prakash Deshmukh

(2) PSI Shri Chavan

(3) PC Shri Katke N.K. BN 4059

(4) PC Shri Steven Sundaram, B.N. 756

(5) P.I. Shri Kadam (who has refused to take up

investigation)

(6) API Shri Thakare

(7) PSI Shri Ballal

(8) API Shri Karnire

(9) Civilian Computer Software Engineer, Mr.

Davis K.T.

(10) H.C. Lele"

According to the Appellant, however, in order of priority, the name of

(1) PSI Shri Chavan, (2) P.I. Shri Prakash Deshmukh (3) P.I. Shri Kadam,

(4) PC Shri Steven Sundaram, B.N. 756, (5) PC Shri Steven Sundaram, B.N.

756, (6) H.C. Lele were recommended and, furthermore, the following

endorsement was made:

"I have indicated priority above. Also include

names of ACP Mulani/Yadav and Davies in the

text."

The names of ACP Mulani/Yadav and Davies, thus, were directed to

be included only in the text, i.e., the history of the case and not for the

purpose of grant of any reward.

Mr. A. Sharan, the learned Addl. Solicitor General appearing on

behalf of the CBI, on the other hand, would contend that the Appellant had

known Telgi both as a scamster as well as a person for a long time, as would

appear from the statement of one Mr. R.S. Mopalwar, an IAS officer

It was urged that from the statement of Mr. Maheshgauri, it would

appear that the Appellant met Telgi alone, apparently for the purpose of

interrogation, but no record thereof is available. The said statement is

supported by Smt. Supriya Patil Yadav and Shri Vasant Koregaonkar, an

affidavit of Mr. Mushrif in the Public Interest Litigation by Shri Anna

Hazare.

According to the learned counsel the Appellant has helped those

officers who did not want to make Telgi's wife, daughter and brother as

accused by dragging his feet.

Mr. Sharan would contend that Mulani had in fact been involved in

the investigating team work, as would appear from the notesheet file of

investigation, inasmuch as he had interrogated some witnesses. Our

attention has also been drawn to the answers given by the Appellant himself

in response to the questionnaire dated 7.11.2003 contending that the

Appellant accepted that Mulani had not been taken out of the team till 30th

September, 2002 although he was transferred on 4th September, 2002.

Our attention has further been drawn to the brain mapping test of

Telgi to show that the Appellant had accepted unlawful gratification from

him.

According to the learned counsel, since beginning the Appellant had

knowledge about the magnitude of the offence but despite the same, he

helped Kamat by not implementing his order of suspension till 15th January,

2003 and, thus, allowed him to take steps to protect himself by arranging a

fake seizure as was apprehended by Mr. Jaiswal. Drawing our attention to

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the judgment of the learned Single Judge, it was contended that having

regard to the provisions of the MCOCA, the Appellant must be held to have

conspired with the members of the organizing team by facilitating

commission of the crime. According to the learned counsel, in view of the

sub-section (4) of Section 21 of the MCOCA, the High Court has rightly

refused to grant bail to the Appellant.

MCOCA was enacted to make special provisions for prevention and

control of, and for coping with, criminal activity by organized crime

syndicate or gang, and for matters connected therewith or incidental thereto.

The Statement of Objects and Reasons for enacting the said Act are as

under:

"Organised crime has been for quite some years

now come up as a very serious threat to our

society. It knows no national boundaries and is

fueled by illegal wealth generated by contract,

killing, extortion, smuggling in contrabands, illegal

trade in narcotics kidnappings for ransom,

collection of protection money and money

laundering, etc. The illegal wealth and black

money generated by the organized crime being

very huge, it has had serious adverse effect on our

economy. It was seen that the organized criminal

syndicates made a common cause with terrorist

gangs and foster terrorism which extend beyond

the national boundaries. There was reason to

believe that organized criminal gangs have been

operating in the State and, thus, there was

immediate need to curb their activities.

It was also noticed that the organized

criminals have been making extensive use of wire

and oral communications in their criminal

activities. The interception of such

communications to obtain evidence of the

commission of crimes or to prevent their

commission would be an indispensable aid to law

enforcement and the administration of justice.

2. The existing legal frame work i.e. the

penal and procedural laws and the adjudicatory

system were found to be rather inadequate to curb

or control the menace of organized crime.

Government, therefore, decided to enact a special

law with stringent and deterrent provisions

including in certain circumstances power to

intercept wire, electronic or oral communication to

control the menace of the organized crime.

It is the purpose of this act to achieve these

objects."

Section 2 is the interpretation clause. Section 2(1)(a), (d), (e) and (f)

whereof read thus:

"2(1) In this act, unless the context otherwise

requires,;

(a) "abet", with its grammatical variations and

cognate expressions, includes, -

(i) the communication or association with any

person with the actual knowledge or having reason

to believe that such person is engaged in assisting

in any manner, an organised crime syndicate;

(ii) the passing on or publication of, without any

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lawful authority, any information likely to assist

the organised crime syndicate and the passing on

or publication of or distribution of any document

or matter obtained from the organised crime

syndicate; and

(iii) the rendering of any assistance, whether

financial or otherwise, to the organised crime

syndicate;

(d) "continuing unlawful activity" means an

activity prohibited by law for the time being in

force, which is a cognizable offence punishable

with imprisonment of three years or more,

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

chargesheets have been filed before a competent

Court within the preceding period of ten years and

that Court has taken cognizance of such offence;

(e) "organised crime" means any continuing

unlawful activity by an individual, singly or

jointly, either as a member of an organised crime

syndicate or on behalf of such syndicate, by use of

violence or threat of violence or intimidation or

coercion, or other unlawful means, with the

objective of gaining pecuniary benefits, or gaining

undue economic or other advantage for himself or

any other person or promoting insurgency;

(f) "organised crime syndicate" means a group of

two or more persons who, acting either singly or

collectively, as a syndicate or gang indulge in

activities of organised crime;"

Sub-section (2) of Section 3 provides for punishment for organized

crime in the following terms:

"(2) Whoever conspires or attempts to commit or

advocates, abets or knowingly facilitates the

commission of an organized crime or any act

preparatory to organized crime, shall be punishable

with imprisonment for a term which shall be not

less than five years but which may extend to

imprisonment for life, and shall also be liable to a

fine, subject to a minimum fine of rupees five

lacs."

Section 4 provides for punishment for possessing unaccountable

wealth on behalf of member of organised crime syndicate. Section 20

provides for forfeiture and attachment of property, sub-section (2) whereof

reads as follows:

"(2) Where any person is accused of any offence

under this Act, it shall be open to the Special Court

trying him, to pass on order that all or any

properties, movable or immovable or both

belonging to him, shall, during the period of such

trial, be attached, and where such trial ends in

conviction, the properties so attached shall stand

forfeited to the State Government, free from all

encumbrances."

Section 21 provides for modified application of certain provisions of

the Code of Criminal Procedure, sub-section (4) whereof is as under:

"(4) Notwithstanding anything contained in the

Code, no person accused of an offence punishable

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under this Act shall, if in custody, be released on

bail or on his own bond, unless \026

(a) the Public Prosecutor has been given an

opportunity to oppose the application of such

release; and

(b) where the Public Prosecutor opposes the

application, the Court is satisfied that there are

reasonable grounds for believing that he is not

guilty of such offence and that he is not likely to

commit any offence while on bail."

Section 24 reads, thus:

"24. Whoever being a public servant renders any

help or support in any manner in the commission

of organised crime, as defined in Clause (e) of

Section 2, whether before or after the commission

of any offence by a member of an organised crime

syndicate or abstains from taking lawful measures

under this act or intentionally avoids to carry out

the directions of any Court or of the superior

police officers in this respect, shall be punished

with imprisonment of either description for a term

which may extend to three years and also with

fine."

The interpretation clause as regard the expression 'abet' does not refer

to the definition of abetment as contained in Section 107 of IPC. It refers to

such meaning which can be attributed to it in the general sense with

grammatical variations and cognate expressions. However, having regard to

the cognate meaning, the term may be read in the light of the definition of

these words under Sections 107 and 108 of the Indian Penal Code. The

inclusive definition although expansive in nature, "communication" or

"association" must be read to mean such communication or association

which is in aid of or render assistance in the commission of organized

crime. In our considered opinion, any communication or association which

has no nexus with the commission of organized crime would not come

within the purview thereof. It must mean assistance to organised crime or

organised crime syndicate or to a person involved in either of them. It,

however, includes (a) communication or (b) association with any person

with the actual knowledge or (c) having reason to believe that such person is

engaged in assisting in any manner, an organised crime syndicate.

Communication to, or association with, any person by itself, as was

contended by Mr. Sharan, would not, in our considered opinion, come within

meaning of the aforementioned provision. The communication or

association must relate to a person. Such communication or association to

the person must be with the actual knowledge or having reason to believe

that he is engaged in assisting in any manner an organised crime syndicate.

Thus, the offence under Section 3(2) of MCOCA must have a direct nexus

with the offence committed by an organised crime syndicate. Such abetment

of commission of offence must be by way of accessories before the

commission of an offence. An offence may be committed by a public

servant by reason of acts of omission and commission which would amount

to tampering with the investigation or to help an accused. Such an act would

make him an accessory after the commission of the offence. It is

interesting to note that whereas Section 3(2) having regard to the definition

of the term 'abet' refers directly to commission of an offence or assisting in

any manner an organised crime syndicate, Section 24 postulates a situation

where a public servant renders any help or support both before or after the

commission of an offence by a member of an organised crime syndicate or

abstains from taking lawful measures under this Act.

Interpretation clauses contained in Sections 2(d), 2(e) and 2(f) are

inter-related. An 'organised crime syndicate' refers to an 'organised crime'

which in turn refers to 'continuing unlawful activity'. As at present advised,

it may not be necessary for us to consider as to whether the words "or other

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lawful means" contained in Section 2(e) should be read "ejusdem generis"/

"noscitur-a-sociis" with the words (i) violence, (ii) threat of violence, (iii)

intimidation or (iv) coercion. We may, however, notice that the word

'violence' has been used only in Section 146 and 153A of the Indian Penal

Code. The word 'intimidation' alone has not been used therein but only

Section 506 occurring in Chapter XXII thereof refers to 'criminal

intimidation'. The word 'coercion' finds place only in the Contract Act. If

the words 'unlawful means' is to be widely construed as including any or

other unlawful means, having regard to the provisions contained in Sections

400, 401 and 413 of the IPC relating to commission of offences of

cheating or criminal breach of trust, the provisions of the said Act can be

applied, which prima facie, does not appear to have been intended by the

Parliament.

The Statement of Objects and Reasons clearly state as to why the said

Act had to be enacted. Thus, it will be safe to presume that the expression

'any unlawful means' must refer to any such act which has a direct nexus

with the commission of a crime which MCOCA seeks to prevent or control.

In other words, an offence falling within the definition of organised crime

and committed by an organised crime syndicate is the offence contemplated

by the Statement of Objects and Reasons. There are offences and offences

under the Indian Penal Code and other penal statutes providing for

punishment of three years or more and in relation to such offences more than

one chargesheet may be filed. As we have indicated hereinbefore, only

because a person cheats or commits a criminal breach of trust, more than

once, the same by itself may not be sufficient to attract the provisions of

MCOCA.

Furthermore, mens rea is a necessary ingredient for commission of a

crime under MCOCA.

In Shri Ram Vs. The State of U.P. [AIR 1975 SC 175], it was stated:

"6\005Thus, in order to constitute abetment, the

abettor must be shown to have "intentionally"

aided the commission of the crime. Mere proof

that the crime charged could not have been

committed without the interposition of the alleged

abettor is not enough compliance with the

requirements of Section 107. A person may, for

example, invite another casually or for a friendly

purpose and that may facilitate the murder of the

invitee. But unless the invitation was extended

with intent to facilitate the commission of the

murder, the person inviting cannot be said to have

abetted the murder. It is not enough that an act on

the part of the alleged abettor happens to facilitate

the commission of the crime. Intentional aiding

and therefore active complicity is the gist of the

offence of abetment under the third paragraph of

Section 107."

Sub-section (2) of Section 3 inter alia provides for facilitating

conspiracy or abetting or commission of a crime by a person knowingly or

any act preparatory to organised crime.

The expression 'conspiracy' is not a term of art. It has a definite

connotation. It must be read having regard to the legal concept which is now

well-settled having regard to several decisions of this Court in Kehar Singh

and others Vs. The State (Delhi Admn.) [AIR 1988 SC 1883], State of

Karnataka Vs. L. Muniswamy and others [AIR 1977 SC 1489] and P.K.

Narayanan Vs. State of Kerala [1995 (1) SCC 142].

In Kehar Singh (supra), it is stated:

"275. From an analysis of the section, it will be

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seen that Section 10 will come into play only when

the court is satisfied that there is reasonable ground

to believe that two or more persons have conspired

together to commit an offence. There should be, in

other words, a prima facie evidence that the person

was a party to the conspiracy before his acts can be

used against his co-conspirator. Once such prima

facie evidence exists, anything said, done or

written by one of the conspirators in reference to

the common intention, after the said intention was

first entertained, is relevant against the others. It is

relevant not only for the purpose of proving the

existence of conspiracy, but also for proving that

the other person was a party to it. It is true that the

observations of Subba Rao, J., in Sardar Sardul

Singh Caveeshar v. State of Maharashtra [(1964) 2

SCR 378 : AIR 1965 SC 682] lend support to the

contention that the admissibility of evidence as

between co-conspirators would be liberal than in

English law. The learned Judge said : (at p. 390)

"The evidentiary value of the said acts is limited

by two circumstances, namely, that the acts shall

be in reference to their common intention and in

respect of a period after such intention was

entertained by any one of them. The expression "in

reference to their common intention" is very

comprehensive and it appears to have been

designedly used to give it a wider scope than the

words "in furtherance of" in the English law; with

the result, anything said, done or written by a co-

conspirator, after the conspiracy was formed, will

be evidence against the other before he entered the

field of conspiracy or after he left it\005."

In P.K. Narayanan (supra), it is stated:

"10. The ingredients of this offence are that there

should be an agreement between the persons who

are alleged to conspire and the said agreement

should be for doing of an illegal act or for doing by

illegal means an act which by itself may not be

illegal. Therefore the essence of criminal

conspiracy is an agreement to do an illegal act and

such an agreement can be proved either by direct

evidence or by circumstantial evidence or by both

and it is a matter of common experience that direct

evidence to prove conspiracy is rarely available.

Therefore the circumstances proved before, during

and after the occurrence have to be considered to

decide about the complicity of the accused. But if

those circumstances are compatible also with the

innocence of the accused persons then it cannot be

held that the prosecution has successfully

established its case. Even if some acts are proved

to have been committed it must be clear that they

were so committed in pursuance of an agreement

made between the accused who were parties to the

alleged conspiracy. Inferences from such proved

circumstances regarding the guilt may be drawn

only when such circumstances are incapable of any

other reasonable explanation. From the above

discussion it can be seen that some of the

circumstances relied upon by the prosecution are

not established by cogent and reliable evidence.

Even otherwise it cannot be said that those

circumstances are incapable of any other

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reasonable interpretation."

In Saju Vs. State of Kerala [AIR 2001 SC 175], this Court held:

"7. In a criminal case the onus lies on the

prosecution to prove affirmatively that the accused

was directly and personally connected with the

acts or omissions attributable to the crime

committed by him. It is a settled position of law

that act or action of one of the accused cannot be

used as evidence against another. However, an

exception has been carved out under Section 10 of

the Evidence Act in the case of conspiracy. To

attract the applicability of Section 10 of the

Evidence Act, the court must have reasonable

ground to believe that two or more persons had

conspired together for committing an offence. It is

only then that the evidence of action or statement

made by one of the accused could be used as

evidence against the other."

It was observed:

"\005In short, the section can be analysed as follows

: (1) There shall be a prima facie evidence

affording a reasonable ground for a court to

believe that two or more persons are members of a

conspiracy; (2) if the said condition is fulfilled,

anything said, done or written by any one of them

in reference to their common intention will be

evidence against the other; (3) anything said, done

or written by him should have been said, done or

written by him after the intention was formed by

any one of them; (4) it would also be relevant for

the said purpose against another who entered the

conspiracy whether it was said, done or written

before he entered the conspiracy or after he left it;

(5) it can only be used against a co-conspirator and

not in his favour.'"

Mens rea, thus, to commit the crime must be established besides the

fact of agreement.

The High Court does not say that the Appellant has abetted Telgi or

had conspired with him. The findings of the High Court as against the

Appellant are attributable to allegations of abetting Kamat and Mulani. Both

Kamat and Mulani were public servants. They may or may not have any

direct role to play as regard commission of an organised crime but unless a

nexus with an accused who is a member of the organised crime syndicate or

an offence in the nature of organised crime is established, only by showing

some alleged indulgence to Kamat or Mulani, the Appellant cannot be said

to have conspired or abetted commission of an organised crime. Prima

facie, therefore, we are of the view that Section 3(2) of MCOCA is not

attracted in the instant case.

Section 24 of MCOCA must be given a proper meaning. A public

servant can be said to have committed an offence within the meaning of the

said provision if he (i) renders any help or support in any manner in the

commission of an organised crime; (ii) whether before or after the

commission of an offence by a member of an organised crime syndicate or

(iii) abstains from taking lawful measures under this Act or (iv) intentionally

avoids to carry out the directions of any Court or of the superior police

officers in this respect.

The purported acts of omission and commission on the part of the

Appellant does not attract the first part of Section 24 of MCOCA. It is not

the contention of the Respondents that he has committed any act which

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comes within the purview of Clauses (3) and (4) hereinbefore. The

provisions of MCOCA, as for example, Section 20 casts a duty upon the

persons concerned to see that properties of a member of the organised crime

syndicate are attached. In view of Section 4, it also becomes the duty of the

persons connected with the investigation of crime to see that persons, who

are in possession of movable or immovable property which cannot be

satisfactorily accounted for are brought to book.

The Act is deterrent in nature. It provides for deterrent punishment.

It envisages three to ten years of imprisonment and may extend to life

imprisonment. Death penalty can also be imposed if somebody commits a

murder. Similarly, fines ranging between three to ten lakhs can be imposed.

Presumption of innocence is a human right. [See Narendra Singh and

Another Vs. State of M.P., (2004) 10 SCC 699, para 31] Article 21 in view

of its expansive meaning not only protects life and liberty but also envisages

a fair procedure. Liberty of a person should not ordinarily be interfered with

unless there exist cogent grounds therefor. Sub-Section (4) of Section 21

must be interpreted keeping in view the aforementioned salutary principles.

Giving an opportunity to the public prosecutor to oppose an application for

release of an accused appears to be reasonable restriction but Clause (b) of

Sub-section (4) of Section 31 must be given a proper meaning.

Does this statute require that before a person is released on bail, the

court, albeit prima facie, must come to the conclusion that he is not guilty of

such offence? Is it necessary for the Court to record such a finding? Would

there be any machinery available to the Court to ascertain that once the

accused is enlarged on bail, he would not commit any offence whatsoever?

Such findings are required to be recorded only for the purpose of

arriving at an objective finding on the basis of materials on records only for

grant of bail and for no other purpose .

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 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 matter 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 a public servant may attract disciplinary proceedings but may

not attract a penal provision.

In Abdulla Mohammed Pagarkar etc. Vs. State (Union Territory of

Goa, Daman and Diu) [AIR 1980 SC 499], it is stated:

"15. Learned counsel for the State sought to

buttress the evidence which we have just above

discussed with the findings recorded by the learned

Special Judge and detailed as items (a) to (e) in

paragraph 5 and items (i) and (iii) in paragraph 6

of this judgment. Those findings were affirmed by

the learned Judicial Commissioner and we are

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clearly of the opinion, for reasons which need not

be restated here, that they were correctly arrived at.

But those findings merely make out that the

appellants proceeded to execute the work in

flagrant disregard of the relevant Rules of the

G.F.R. and even of ordinary norms of procedural

behaviour of government officials and contractors

in the matter of execution of works undertaken by

the government. Such disregard however has not

been shown to us to amount to any of the offences

of which the appellants have been convicted. The

said findings no doubt make the suspicion to which

we have above adverted still stronger but that is

where the matter rests and it cannot be said that

any of the ingredients of the charge have been

made out.

Apart from the findings and evidence referred to

earlier in paragraph, no material has been brought

to our notice on behalf of the State such as would

indicate that the bills or the summaries in question

were false in any material particular."

In C. Chenga Reddy and Others Vs. State of Andhra Pradesh [AIR

1996 SC 3390], it is stated:

"55. \005The learned counsel appearing for all the

appellants also during the course of their

arguments were unable to point out any error in

those findings and according to them in the

established facts and circumstances of the case, the

irregularities, administrative lapses and violation

of the codal provisions, could only have resulted in

a departmental action against the officials but

criminal prosecution was not justified. Their

argument has force and appeals to us.."

Every act of negligence or carelessness by itself may not be a

misconduct.

The provisions of the said Act, therefore, must receive a strict

construction so as to pass the test of reasonableness.

Section 21(4) of MCOCA does not make any distinction between an

offence which entails punishment of life imprisonment and an imprisonment

for a year or two. It does not provide that even in case a person remains

behind the bars for a period exceeding three years, although his involvement

may be in terms of Section 24 of the Act, the court is prohibited to enlarge

him on bail. Each case, therefore, must be considered on its own facts. The

question as to whether he is involved in the commission of organized crime

or abetment thereof must be judged objectively. Only because some

allegations have been made against a high ranking officer, which cannot be

brushed aside, may not by itself be sufficient to continue to keep him behind

the bars although on an objective consideration the court may come to the

conclusion that the evidences against him are not such as would lead to his

conviction. In case of circumstantial evidence like the present one, not only

culpability or mens rea of the accused should be prima facie established, the

Court must also consider the question as to whether the circumstantial

evidence is such whereby all the links in the chain are complete.

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

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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 grant 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 necessarily 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.

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.

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 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.

In Kalyan Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav and

Another [(2004) 7 SCC 528], this Court observed:

"18. We agree that a conclusive finding in regard

to the points urged by both the sides is not

expected of the court considering a bail

application. Still one should not forget as observed

by this Court in the case Puran v. Rambilas and

Anr. (SCC p. 344, para 8):

"Giving reasons is different from discussing merits

or demerits. At the stage of granting bail a detailed

examination of evidence and elaborate

documentation of the merits of the case has not to

be undertaken. ...... That did not mean that whilst

granting bail some reasons for prima facie

concluding why bail was being granted did not

have to be indicated."

We respectfully agree with the above dictum of

this Court. We also feel that such expression of

prima facie reasons for granting bail is a

requirement of law in cases where such orders on

bail application are appealable, more so because of

the fact, that the appellate court has every right to

know the basis for granting the bail. Therefore, we

are not in agreement with the argument addressed

by the learned counsel for the accused that the

High Court was not expected even to indicate a

prima facie finding on all points urged before it

while granting bail, more so in the background of

the facts of this case where on facts it is

established that a large number of witnesses who

were examined after the respondent was enlarged

on bail had turned hostile and there are complaints

made to the court as to the threats administered by

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the respondent or his supporters to witnesses in the

case. In such circumstances, the Court was duty-

bound to apply its mind to the allegations put forth

by the investigating agency and ought to have

given at least a prima facie finding in regard to

these allegations because they go to the very root

of the right of the accused to seek bail. The non-

consideration of these vital facts as to the

allegations of threat or inducement made to the

witnesses by the respondent during the period he

was on bail has vitiated the conclusions arrived at

by the High Court while granting bail to the

respondent. The other ground apart from the

ground of incarceration which appealed to the

High Court to grant bail was the fact that a large

number of witnesses are yet to be examined and

there is no likelihood of the trial coming to an end

in the near future. As stated herein above, this

ground on the facts of this case is also not

sufficient either individually or coupled with the

period of incarceration to release the respondent on

bail because of the serious allegations of tampering

with the witnesses made against the respondent."

In Jayendra Saraswathi Swamigal Vs. State of T.N. [(2005) 2 SCC

13], this Court observed:

"16. \005 The considerations which normally weigh

with the Court in granting bail in non-bailable

offences have been explained by this Court in State

v. Capt. Jagjit Singh (1962) 3 SCR 622: AIR 1962

SC 253 and Gurcharan Singh v. State (Delhi

Admn.) (1978) 1 SCC 118: (1978) 2 SCR 358:

AIR 1978 SC 179: and basically they are - the

nature and seriousness of the offence; the character

of the evidence; circumstances which are peculiar

to the accused; a reasonable possibility of the

presence of the accused not being secured at the

trial; reasonable apprehension of witnesses being

tampered with; the larger interest of the public or

the State and other similar factors which may be

relevant in the facts and circumstances of the

case\005"

In Kalyan Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav and

Another [2005 (2) SCC 42], this Court observed:

"18. It is trite law that personal liberty cannot be

taken away except in accordance with the

procedure established by law. Personal liberty is a

constitutional guarantee. However. Article 21

which guarantees the above right also

contemplates deprivation of personal liberty by

procedure established by law. Under the criminal

laws of this country, a person accused of offences

which are non bailable is liable to be detained in

custody during the pendency of trial unless he is

enlarged on bail in accordance with law. Such

detention cannot be questioned as being violative

of Article 21 since the same is authorised by law.

But even persons accused of non bailable offences

are entitled for bail if the court concerned comes to

the conclusion that the prosecution has failed to

establish a prima facie case against him and/or if

the court is satisfied for reasons to be recorded that

in spite of the existence of prima facie case there is

a need to release such persons on bail where fact

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situations require it to do so. In that process a

person whose application for enlargement on bail

is once rejected is not precluded from filing a

subsequent application for grant of bail if there is a

change in the fact situation. In such cases if the

circumstances then prevailing requires that such

persons to be released on bail, in spite of his earlier

applications being rejected, the courts can do so."

It was, however, observed:

"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 facts in one case cannot be used to

bear in mind the conclusion of fact in another

case\005"

We are not oblivious of the fact that in certain circumstances, having

regard to the object and purport of the Act, the Court may take recourse to

principles of 'purposive construction' only when two views are possible.

The High Court, in our considered view, considered the matter from a

wrong perspective. Only because the Appellant had the power, the same

would not by itself lead to a conclusion that he was a privy to the crime. As

regard Mulani's visit to Bangalore, it is accepted that on all occasions he

was accompanied by other officers. The purpose of such visit was to have a

high level conference so as to enable the Government of Maharashtra to

obtain custody of Telgi. On 9.7.2002, Mulani visited Bangalore in the

company of the Appellant. On 23.7.2002, he visited in the company of

Appellant as also the Additional Chief Secretary, Shri Basak. Those two

visits were prior to 6.9.2002. On 11th September, 2002, he went to

Bangalore in the company of Shri Sampat Kadam as the case of Telgi was

fixed on that day. He is said to have been sent by Shri Mushrif. Dr. Jai

Vasantrao Jadhav in his investigation note dated 15.12. 2003 stated:

"On 09/09/2002 Mushrif sahib called me to his

office and told me the story of his trip to

Bangalore. He himself had gone there with the

transfer warrant to bring Telgi to Pune. Similarly,

he informed me about the future date i.e.

12/09/2002, set by the Bangalore court for hearing

and that Advocate general of Maharashtra P.

Janardanan and an advocate from Pune Raman

Agrawal as special public prosecutor will be going

there for the hearing. For the said hearing ACP

Mulani, police inspector Sampat Kadam were to

procered to Mumbai and they will go to Bangalore

court along with P. Janardanan. In this connection

a discussion had already been held, said Mushrif."

On 18.9.2002, Mr. Mulani visited Bangalore in the company of the

Addl. Advocate General of Maharashtra on which date the Court passed the

order under Section 268 of the Code of Criminal Procedure.

As regards Mr. Mulani's participation in the investigation, we may

notice that Dr. Jadav again in his statement dated 2.4.2002 stated:

"He has done the work of searching the

absconding accused in the aforesaid crime and he

should be deputed with the same work.

Accordingly, ACP Shri Mulani was assisting me in

the work of searching the absconding accused."

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As regards his inclusion in the team, Dr. Jadav had stated:

"The investigation of Crime 135/2002, of Bund

Garden Police Station was handed over to me on

4.9.2002 under written orders. Thereafter, a

meeting had taken place between Police

Commissioner Shri R.S. Sharma, Joint Police

Commissioner Shri Mahesh Gauri and myself for

deciding which officers should be included for the

investigation work. At that time Shri Sharma

Saheb told me that you take whatever officers you

want for the investigation. On this, I told him that

I do not personally know the officers in Pune.

Being on the post of DCP (Departmental

Enquiries), I am not conversant with the

investigating skill of the officers in Pune city.

After I told so, they finalized the names of the

members of the investigation team. In that the

name of ACP Mulani was first."

The Appellant, therefore, did not suggest the name of Mulani himself.

He did so at the instance of Dr. Jadav and that too both by him as also the

Joint Commissioner.

So far as the recommendation of the Appellant for inclusion of Mr.

Mulani's name in the list of officers who were to be rewarded for having

done best work, is concerned, it appears that 10 names were suggested for

the said purpose. The Appellant changed the priority in the manner as

indicated hereinbefore. Only those persons whose names are referred in the

list were to receive award. The names of Mulani, Yadav and Davies were

directed to be included in the text which would mean mentioning of their

names in the history of case, as evidently they were involved in the

investigation throughout.

Furthermore, the name of Mulani alone was not added but names of

two other officers were also added. We may further notice that the

Appellant by letter dated 22.11.2002 addressed to the Director General of

Police made serious complaints against Mr. Mushrif stating:

"The request of Additional Commissioner of

Police Mr. Mushrif for removing the names of near

relatives of Mr. Abdul Kareem Ladsab Telgi, his

wife and daughter because of their financial

partners. Thus, being a supervising officer it was

his duty to collect evidence during the

investigation and to take proper decision like the

Investigating Officer, being a Supervisory Officer.

It appears that Shri Mushrif has neglected these

things intentionally.

Prior to this also Shri Mushrif has written

letters to the Investigating Officers to obstruct the

investigation directly or indirectly, which came to

be noticed because of the complaints made by the

officers. Similarly, he being Officer of the rank of

Deputy Inspector General of Police, he was

capable of invoking provisions of Maharashtra

Control of Organised Crime Act, still Mr. Mushrif

despite being the Senior Officer of the crime

avoided to invoke the said provision. From all

these things the otherwise intention of Mr. Mushrif

to obstruct the investigation is apparent.

Mr. Mushrif has written a letter on

23.10.2002, in which it is stated that the

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Investigating Officer should remove the names of

the five accused persons, who are absconding,

without giving any reason and with the malafide

and corrupt intention he has suggested the addition

of six names as absconding accused. The copy of

the said letter is already submitted to you.

In fact it is said that the five names which

are removed are the part of information prepared

on the computer of Mr. Mushrif. Out of which, I

have submitted the clear report that we have no

objection if the cases of Shri Manoj Kotharath and

Shri Bajrang are transferred to Central Crime

Investigation Department.

Shri Mushrif is informing the media that the

Inquiry of this matter be conducted by Shri P.D.

Director General of Police, Anti Corruption

Bureau or Shrigarvel Director General of Police.

In this connection, I wish to state that all these

matters be investigated immediately and therefore

a retired Judge of the High Court be appointed for

the said purpose. Thereby not only allegations

made by Mr. Mushrif will be enquired into but this

also will be seen as to in these important crime,

which is spread over the entire country when the

investigation is reached upto the very important

stage, who is trying to indirectly help the main kin

pin of the crime Telgi by obstructing the

investigating right from the beginning?

Since now the investigation of this crime is

being made by the Special Investigation Team, it is

requested that the truth behind all these matters be

brought to surface and the appropriate action be

taken against the concerned persons at the

earliest."

About Mulani's lack of integrity, admittedly facts were made known

to the Appellant only on 6.9.2002. Prior thereto, Mulani received very good

remarks from his superior officers as would appear from a letter dated

21.3.2002 addressed by Shri A.K. Sharma to M.C. Mulani.

It is undisputed, as would appear from the stand taken by the State

before the Maharashtra State Administration Tribunal, that transfer of

Mulani was not by way of penalty but on administrative grounds. The State

Government through Shri Ashok Basak also could have suspended Mulani.

It does not appear from the records that apart from field work and searching

for the accused Mulani took any part in investigation between 6.9.2002 and

30.9.2002.

Mr. Mushrif in answer to the questionnaire categorically stated that

four teams were formed for investigation and Mulani was in the team of

field work. He, having been brought by Mr. Mushrif, had been working

earlier. Mr. Mushrif accepts that the Appellant had asked him to supervise

the investigation of the teams. He had drawn a broad outline as to how to

proceed systematically:

"On 12.6.2002 I had drawn a broad outline as to

how to proceed systematically. My concept was as

under:

(a) A team for appraised of seized evidence

paperwork.

(b) Investigation team

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(c) Field work"

It is also noteworthy that in the said statement, in certain matters, the

Appellant's role was described as under:

"12. CP's source information led to the registration

of Cr. No. 135/2002. When you received

information about this? Being incharge of Crime

branch, What immediate steps were taken by you

for further investigation?

It seems that a verifiable information was

received by Shri Kale, PI Crime, P.S. Bundgarden.

In this connection he sent for two suspects. The

suspects did not reveal much. The informer was

asked to further cultivate the suspects. That two

suspects had been allowed to go was mistaken that

they are being left off. This information came to

the notice of CP who intervened and asked Sr. P.I.

Deshmukh, P.S. Bundgarden, to apprehend the

suspects and further interrogate them. This

interrogation revealed vital information

implicating the suspects and the others.

Interrogations revealed further information that to

a trap. PI Kale himself lodged the complaint and

the F.I.R. came to be registered."

So far as the inspection of Cuffe Parade flat is concerned, the High

Court failed to notice that at the time of inspection of the flat Jaiswal could

have taken certain action which he did not. At least he could have seized his

mobile. The Appellant took all steps which he could take. He passed

telephonically an order of suspension of the officers in presence of Jaiswal

when the matter was brought to his notice. When the letter dated 10.1.2003

reached him on 12.1.2003 he also passed an order of suspension in writing.

It was for the Joint Commission to implement the said order of suspension.

It is too much to expect that an officer passing an order of suspension must

also see to it that his order is implemented by all concerned. The High

Court is also not correct in attributing motive to the Appellant as regards

seizure of fake stamps and genuine stamps from the Bhiwandi godown on

12.1.2003. The Appellant had no role to play therein. Before the learned

Single Judge admittedly a wrong contention was raised on behalf of the

Respondents that Jaiswal had at one point of time expressed a suspicion that

the magnitude of Kamat's involvement may be minimized by making a fake

raid.

For all intent and purport, the High Court has placed the onus of proof

upon the Appellant, which is impermissible.

The Appellant faced a contempt petition before the Maharashtra State

Administrative Tribunal and in his affidavit, he categorically stated that

neither Mulani was the investigating officer nor supervisory officer. In his

affidavit, as regard reason for his transfer to Special Branch from Crime

Branch, he stated:

"8. With reference to paras 6(5)(v) of the

application, I say that this was a very sensational

murder case and the applicant was the immediate

supervisory officer of its investigation. But as the

main culprit could not be arrested, the case was

transferred to State C.I.D. by the C.I.D. It

transpired that the deceased Faizulla Khan along

with two other persons had met the applicant in his

office a couple of hours before his assignation.

But this vital information was not disclosed by the

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applicant anywhere in the investigation, though he

was the immediate Supervisory Officer of the case.

Thus, his conduct was found to be highly

suspicious in this sensational case. Under these

circumstances it was not desirable to keep the

applicant in the Crime Branch. This is one of the

reasons for his transfer out of the Crime Branch.

17. With reference to para 6(13) of the application,

I say the allegations in this para are denied as the

applicant has been retained as A.C.P., Pune City.

However, there is no stay granted to the internal

orders issued by the respondent no. 2 of the

applicant. Neither the applicant has prayed in his

O.A. No. 863/2002 that he should not be

transferred anywhere from the Crime Branch, Pune

City."

In Kartar Singh Vs. State of Punjab [(1994) 3 SCC 569], this Court

observed:

"352. It is true that on many occasions, we have

come across cases wherein the prosecution

unjustifiably invokes the provisions of the TADA

Act with an oblique motive of depriving the

accused persons from getting bail and in some

occasions when the courts are inclined to grant bail

in cases registered under ordinary criminal law, the

investigating officers in order to circumvent the

authority of the courts invoke the provisions of the

TADA Act. This kind of invocation of the

provisions of TADA in cases, the facts of which do

not warrant, is nothing but sheer misuse and abuse

of the Act by the police. Unless, the public

prosecutors rise to the occasion and discharge their

onerous responsibilities keeping in mind that they

are prosecutors on behalf of the public but not the

police and unless the Presiding Officers of the

Designated Courts discharge their judicial

functions keeping in view the fundamental rights

particularly of the personal right and liberty of

every citizen as enshrined in the Constitution to

which they have been assigned the role of sentinel

on the qui vive, it cannot be said that the

provisions of TADA Act are enforced effectively

in consonance with the legislative intendment."

In Prakash Kumar Alias Prakash Bhutto Vs. State of Gujarat [(2005) 2

SCC 409], the Constitution Bench of this Court while noticing Kartar Singh

(supra) observed:

"44. In our view the above observation is

eloquently sufficient to caution police officials as

well as the Presiding Officers of the Designated

Courts from misusing the Act and to enforce the

Act effectively and in consonance with the

legislative intendment which would mean after the

application of mind. We reiterate the same."

The learned Additional Solicitor General, however, had drawn our

attention to the statement of Mr. R.S. Mopalwar. The said statement was

recorded on 21.6.2004. Shri U.K. Goel has also not been examined on the

ground that he has gone out of the country. This material was not used

before the learned Single Judge.

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Mr. Saran, laid emphasis on the fact that Telgi was interrogated alone

by the Appellant after asking all others to leave the room without

maintaining any record therefor.

In this connection, we may notice the questionnaire and statement of

Shri Maheshgauri, question No. 50 whereof reads as under:

"50) Did CP ever interrogate Telgi in prison? Did

CP ever record his statement on the tape recorder?

Are you aware about it?

Ans: - CP did interrogate Telgi in camera in his

own chamber. We were present in chamber of CP

when AKL Telgi was ushered in by either Mulani

or PI Deshmukh. By we I mean DCP Koregaokar

was also present when Telgi entered. CP said,

"rwgh oks gS uk tks cWkEcs

gWkLihVy ds nxsZ is vk;k djrk

Fkk uk" Then we moved out. I do not know if

the conversation was tape recorded."

If the Appellant was knowing Telgi, there was no reason to seek to

identify Telgi by reference to a person who used to visit Bombay Hospital,

Dargah. Our attention has also been drawn to the report of the brain

mapping test of Telgi. In the said report, it is stated:

"Pursuant to the request made vide letter cited

under reference, accused Mr. Karim Telgi was

brought for polygraph examination on 20th

December 2003. The cited suspect was first

interviewed and interrogated. It was found during

the interrogation and the interview that the suspect

appeared to be concealing some of the relevant

information and not truthful to his statement with

regard to the involvement of politician and police

officers in the fake stamp paper. He was further

subjected for "Brain Mapping" test on 21

December 2003."

As regard what transpired in the meeting with Telgi during

interrogation by the Appellant, Dr. Jadhav made the following statement in

the investigation note:

"On 19/10/2002 accused Telgi was granted

magisterial custody and hence, he was to be taken

to Yerwada jail. But police commissioner Mr.

Sharma ordered us, "Bring the accused to my

chamber for the purpose of interrogation" and we

had to comply. We took accused Telgi to the

office of the police commissioner at around 18.00

hrs. We kept Telgi outside and informed

commissioner Sharma by going into his chamber

that we had brought Telgi in the office. Then on

his direction, we came out of the chamber and sent

accused Telgi alone inside as per Mr. Sharma's

instructions. After this, Sharma Sahib interrogated

the accused Telgi from 18.00 hrs. to 20.00 hrs.

The Yerwada jail officials do not allow the

accused in the jail late in the night as a regular

practice. When we came to know about this, we

informed additional police commissioner Mahesh

Gauri, accordingly. Then on Mr. Gauri's

direction, we went inside Mr. Sharma's cabin and

informed him accordingly. That time he said that,

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he would finish within ten minutes. Then after 10-

15 minutes Sharma sahib called us in and ordered

us to take Telgi away. Then along with Telgi, we

started moving outside the commissioner's office

and towards the Yerwada jail and we asked Telgi

about the interrogation by the Sharma Saheb.

Here, Telgi told us, "Sharma sahib asked me about

the place where I had hided the remaining stamps?

To whom and how much money did I give? Who

are the political figures of my acquaintance? etc.

his main thrust was on these questions, After

asking the questions, Mr. Sharma's right hand was

moving towards the button of the tape-recorder as

he wanted to tape my answers. I was not able to

see the tape recorder, but it was evident from the

movements of his hand that he was trying to

switch on the tape for recording my answers."

Then we reached the Yerwada Jail. Police sub

inspector Mr. Hanumansingh Subbalkar (crime

branch, Pune Police Commissionerate) was the

chief officer appointed to keep the custody of Telgi

and party."

Therefore, there is some substance in the contention of Mr. Manohar

that the Commissioner of Police may not like to interrogate an accused

person as regard his political connections, if any, in presence of others, but

the line of interrogation was revealed by Telgi immediately after he came

out of his chamber. It further appears from the record that even Mushrif had

interrogated Telgi exclusively.

Furthermore, it appears that it is Mushrif who wanted to keep wife,

daughter and brother of Telgi out of the chargesheet, as would appear from

the statement of Mr. Kishore Eknath Yadav to the following effect:

"Names of accused Fathima and Javed were

mentioned in the case diary as suspects however

full names and addresses of these accused could

not be made accused. Because the information is

not available against them and they are only

servants, such instructions were issued by Addl.

Commissioner of police during the time of

beginning of the investigation and on other

occasions.

It was further stated:

"Although for the said purpose note was made for

seeking written orders, Honourable Additional

Commissioner of Police has not made any specific

order. Apart from this who should be made

accused or not was the primary right of D.C.P.

Zone \026 II as per the decision taken by Additional

Commissioner of Police and the final decision

about the same was to be that of Addl.

Commissioner of Police (Order dated 13/6/2002).

Apart from the fact that nothing has been brought on record to show

as to how far a report of brain mapping test can be relied upon, the report

appears to be vague. It appears, the Respondents themselves did not want

to put much reliance on the said report.

Furthermore, the admissibility of a result of a scientific test will

depend upon its authenticity. Whether the brain mapping test is so

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developed that the report will have a probative value so as to enable a court

to place reliance thereupon, is a matter which would require further

consideration, if and when the materials in support thereof are placed before

the Court.

In Frye Vs. United States [293 F 1013 (DC Cir) (1923)], the principles

to determine the strength of any investigation to make it admissible were

stated in the following terms:

"Just when a scientific principle or discovery

crosses the line between the experimental and

demonstrable stages is difficult to define. Some

where in the twilight zone the evidential force

must be recognized, and while the Courts will go a

long way in admitting the expert testimony

deducted from a well recognized scientific

principle or discovery, the thing from which the

deduction is made must be sufficiently established

to have gained general acceptance in the particular

field in which it belongs.

Frye (supra), however, was rendered at a time when the technology,

the polygraph test, was in its initial stage and was used in few laboratories.

The guidelines issued therein posed a threat of lack of judicial adaptation of

the new developments and ignored the reliability on a particular piece of

evidence.

A change of approach was, however, found in Daubart Vs. Merryll

Dow Pharmaceuticals Inc. [113 Sct 2786 (1993)] where the courts while

allowing "general acceptance" stated that this might not be a precondition

for admissibility of the scientific evidence, for which the Court may consider

the following:

(a) Whether the principle or technique has been or can be reliably

tested?

(b) Whether it has been subject to peer review or publication?

(c) It's known or potential rate of error?

(d) Whether there are recognized standards that control the procedure

of implementation of the technique?

(e) Whether it is generally accepted by the Community? And

(f) Whether the technique has been introduced or conducted

independently of the litigation?

In a case involving an issue as to whether on-job-exposure to the

manufacturers products promoted small cell lung cancer, the U.S. Supreme

Court in General Electric Co. Vs. Robert K. Joiner [522 US 139 L.Ed. 2d]

following Daubert (supra), held that in cases involving the issue of expert

evidence the appellate court should only consider whether there is any abuse

of discretion in admitting such evidence by the trial courts and should not go

into reviewing the evidence itself as it is for the trial courts to assume the

"gate keeper's role" in screening such evidence to ensure whether it is not

only relevant but also reliable. This was further expanded in Kumho Tire

Co. Ltd. Vs. Carmichael [(1999) 119 S.Ct. 1167] whereby the 'gate

keeping' obligation of the Trial Judge to ensure the relevancy and reliability

for admitting the evidence extended not only to scientific but also to all

kinds of expert evidence.

In R. Vs. Watters [(2000) All ER (D) 1469], it was held :

"DNA evidence may have a great significance

where there is supporting evidence, dependent, of

course, on the strength of that evidence."

"\005in every case one has to put the DNA evidence

in the context of the rest of the evidence and

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decide whether taken as a whole it does amount to

a prima facie case."

As at present advised, thus, and having regard to the fact that the

prosecution did not rely upon the said report before the High Court, we also

for the purpose of the present matter do not intend to place any reliance

thereupon.

Mr. Manohar's contention to the effect that those officers whose

conduct was not above board and who did not take any action for attaching

the property of the accused and his relations in terms of the Act, have not

been made accused, may also be correct. He has further brought to our

notice that witnesses have also changed their stand after the Appellant was

placed under arrest. At this juncture, it may not be necessary for us to go

into details on the aforementioned contention.

We have referred to the aforementioned materials only for the purpose

of showing that the High Court may not be entirely correct in coming to the

conclusion that the Appellant prima facie committed an offence under

Section 3(2) as well as Section 24 of MCOCA.

For the reasons aforementioned, we are of the opinion that the order

dated 4.11.2004 granting interim bail to the Appellant should continue

subject to the same conditions.

This appeal is allowed.