Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1689 OF 2012

(Arising out of SLP (Crl.) No. 1522 of 2012)

The State of Maharashtra .... Appellant(s)

Versus

Vishwanath Maranna Shetty .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1)Leave granted.

2)This appeal is directed against the judgment and order

dated 10.08.2011 passed by the High Court of Judicature at

Bombay in Criminal Bail Application No. 872 of 2011 whereby

learned single Judge of the High Court granted bail to the

respondent herein - Accused No.9 in MCOC Special Case No.

10 of 2010 pending before the Special Court under the

Maharashtra Control of Organised Crime Act, 1999 for Greater

Bombay.

1

Page 2 3)Brief facts:

(a)According to the prosecution, an “organised crime

syndicate” headed by wanted accused Bharat Nepali and Vijay

Shetty is operating overseas. The said syndicate has indulged

in various continuous unlawful activities in the nature of

extortion and contract killings in Mumbai and other places

through their members. All the accused persons pending on

the file before the MCOC Special Court, Greater Bombay are

alleged to be the members of the said syndicate.

(b)On 03.06.2010, one Farid Tanasha, known criminal, was

shot dead at his residence at Tilaknagar, Chembur, Mumbai.

On the same day, an FIR being No. 122 of 2010 was registered

against the accused persons under Sections 302 and 452 read

with Section 34 and Section 120-B of the Indian Penal Code,

1860 (in short ‘IPC’) and under Sections 3, 25 and 27 of the

Arms Act, 1959 at Tilaknagar Police Station.

(c)During investigation, DCB, CID, Unit No. 6, Mumbai

learnt that the murder was committed on the instructions of

Bharat Nepali and Vijay Shetty (wanted accused). Further, it

was revealed in the investigation that one Dattatray Bhakare

(Accused No. 7 therein) - a builder, had contracted Bharat

2

Page 3 Nepali and Vijay Shetty for eliminating Farid Tanasha (since

deceased), who agreed to help the members of a Co-op.

Housing Society in order to settle their dispute with the

builder. It was also revealed in the investigation that the said

builder allegedly financed a sum of Rs. 90 lakhs for the said

killing.

(d)It was further revealed during investigation that the

respondent herein was an active member of the “organised

crime syndicate” and was managing funds of the syndicate and

through him the money changed hands from co-accused

Dattatray Bhakare to Jafar Razialam Khan @ Abbas and

Mohd. Sakib Shahnawaz Alam Khan, Accused Nos. 1 & 2

respectively, who killed Farid Tanasha.

(e)On 25.09.2010, Commissioner of Police, Greater Bombay,

accorded sanction for prosecution of the arrested accused

persons including the respondent herein under Section 3(1)(i),

(2) and (4) of the Maharashtra Control of Organised Crime Act,

1999 (in short ‘the MCOCA’) and hence the respondent is

alleged to have committed the offences provided hereinabove

along with the offence under Section 302 read with Section

120B of the IPC.

3

Page 4 (f)The respondent herein preferred an application for bail in

Special Case No. 10 of 2010 before the MCOC Special Court,

Greater Bombay. By order dated 07.05.2011, the Special

Court dismissed the said application.

(g)Being aggrieved, the respondent herein preferred

Criminal Bail Application No. 872 of 2011 before the High

Court. By impugned order dated 10.08.2011, the High Court

accepted the case of the respondent and granted him bail by

imposing certain conditions.

(h)Questioning the order granting bail to the respondent, the

State of Maharashtra has filed the present appeal by way of

special leave.

4)Heard Mr. Chinmoy Khaladkar, learned counsel for the

appellant-State and Mr. U.U. Lalit, learned senior counsel for

the respondent-accused.

5)The only point for consideration in this appeal is whether

in the light of the allegations made and materials placed by the

prosecution, the High Court was justified in granting bail,

particularly, in the light of restriction imposed under Section

21(4) of MCOCA?

4

Page 5 6)Learned counsel for the State, after taking us through the

averments in the FIR, confessional statement of Mohd. Rafiq

Abdul Samad Shaikh @ Shankar (Accused No. 6 therein),

relevant provisions of MCOCA and other materials, submitted

that the Special Court was fully justified in rejecting the

application for bail filed by the respondent, who is arrayed as

Accused No. 9. On the other hand, according to him, the High

Court, having failed to notice the involvement of the

respondent and his role in passing of the amount from

Dattatray Bhakare - a builder to the actual killers, A-1 and A-

2, granted bail to him.

7)Per contra, Mr. U.U. Lalit, learned senior counsel for the

respondent, by pointing out the confessional statement of co-

accused, who retracted later, and in the light of the provisions

of MCOCA, submitted that the High Court was fully justified in

granting bail to the respondent.

8)In order to appreciate the rival contentions, it is useful to

refer the relevant provisions of MCOCA which are extracted

hereinbelow. There is no dispute that apart from Section 302

read with Section 120-B of IPC, the respondent was charged

5

Page 6 with Section 3(1)(i), 3(2) and 3(4) of MCOCA. The relevant

provisions of MCOCA read as under:

Section 2 of MCOCA deals with various definitions:

“2. Definitions. (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 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 charge-sheets 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;

(g)…….”

6

Page 7 “3. Punishment for organised crime- (1) Whoever commits

an offence of organised crime shall,

(i) if such offence has resulted in the death of any person, be

punishable with death or imprisonment for life and shall

also be liable to a fine, subject to a minimum fine of rupees

one lac;

(ii) in any other case, be punishable with imprisonment for a

term which shall not be 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.

(2) Whoever conspires or attempts to commit or advocates,

abets or knowingly facilitates the commission of an

organised crime or any act preparatory to organised 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 of rupees five lacs.

(3) Whoever harbours or conceals or attempts to harbour or

conceal, any member of an organised crime syndicate; shall

be punishable with imprisonment for a term which shall not

be 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.

(4) Any person who is a member of an organised crime

syndicate shall be punishable with imprisonment for a term

which shall not be 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.

(5) Whoever holds any property derived of obtained from

commission of an organised crime or which has been

acquired through the organised crime syndicate funds shall

be punishable with a term which, shall not be less than

three years but which may extend to imprisonment for life

and shall also be liable to fine, subject to a minimum fine of

rupees two lacs.”

“4. Punishment for possessing unaccountable wealth on

behalf of member of organised crime syndicate.

If any person on behalf of a member of an organised crime

syndicate is, or, at any time has been, in possession of

movable or immovable property which he cannot

satisfactorily account for, he shall be punishable with

imprisonment for a term which shall not be less than three

7

Page 8 years but which may extend to ten years and shall also be

liable to fine, subject to a minimum fine of rupees one lac

and such property shall also liable for attachment and

forfeiture, as provided by section 20.”

“21. Modified application of certain provisions of the

Code.-

(1)…

(2)…

(3)…

(4) Notwithstanding anything contained in the Code, no

person accused of an offence punishable under this Act

shall, if in custody, be released on bail or on his own bond,

unless—

(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.”

9)The very same provisions have been considered by this

Court in Ranjitsing Brahmajeetsing Sharma vs. State of

Maharashtra & Anr. (2005) 5 SCC 294. In this case, the

provisions of MCOCA were invoked against one Telgi who 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 figured as

Accused No. 23 and one Shabir Sheikh as Accused No.25.

After narrating all the details, this Court posed the following

question:

“36. 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

8

Page 9 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?”

In an answer to the same, this Court held as under:

“38. 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.”

“44. 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 applicant. Such cannot be the

intention of the legislature. Section 21(4) of MCOCA,

9

Page 10 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.”

“46. 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.”

10)It is relevant to note that 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 is

as under:

“Organised crime has for quite some years now come up

as a very serious threat to our society. It knows no national

boundaries and is fuelled by illegal wealth generated by

contract killings, extortion, smuggling in contrabands, illegal

trade in narcotics, kidnappings for ransom, collection of

10

Page 11 protection money and money laundering etc. The illegal

wealth and black money generated by the organised crime

being very huge, it has had serious adverse effect on our

economy. It was seen that the organised criminal syndicates

made a common cause with terrorist gangs and foster

terrorism which extend beyond the national boundaries.

There was reason to believe that organised criminal gangs

have been operating in the State and, thus, there was

immediate need to curb their activities.

It was also noticed that the organised 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 framework i.e. the penal and

procedural laws and the adjudicatory system were found to

be rather inadequate to curb or control the menace of

organised 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

organised crime.

It is the purpose of this Act to achieve these objects.”

We have already mentioned the relevant definitions including

the definition of ‘abet’, ‘continuing unlawful activity’,

‘organised crime’ and ‘organised crime syndicate’.

11)Keeping the above Objects and Reasons and various

principles in mind, statutory provisions of MCOCA, restrictions

for the grant of bail and the materials placed by the

prosecution, let us consider whether the respondent has made

out a case for bail?

11

Page 12 12)Considering the arguments advanced by both the sides,

we have meticulously analysed the reasoning of the special

Court rejecting the application for bail filed by the respondent

herein and impugned order of the High Court granting him

bail. The materials placed indicate that the respondent is

having an association with the overseas base wanted accused

Nos. 1 and 2. It also indicates that the respondent knowingly

handled the funds of the syndicate. The statement of one of

the witnesses indicates that the respondent had asked the said

witness to collect a sum of Rs.25 lakhs from the co-accused –

Ravi Warerkar, however, the same was not materialized. In

addition to the same, there is a statement of co-accused –

Mohd. Rafiq that he collected Rs.15 lakhs from co-accused –

Dattatray Bhakare and delivered it to the respondent. The

confessional statement further indicates that the wanted

accused - Vijay Shetty used to make calls using cell phone no.

0061290372184 to the respondent. The confessional

statement also reveals that Accused No. 6 received Rs. 6 lakhs

from the man of the respondent-accused. On perusal of the

materials relied on by the prosecution, the special Judge

concluded that the respondent had been working for the

12

Page 13 wanted accused, Vijay Shetty, and he used to receive ill-gotten

money for him and prima facie the ingredients of the offence

punishable under Section 4 of MCOCA attracts against the

respondent-accused.

13)In the earlier part of our judgment, we extracted Section

21(4) of MCOCA which bars the Court from releasing the

accused of an offence punishable under the said Act subject to

the conditions prescribed in clauses (a) and (b) therein. We are

of the view that sub-section (4) of Section 21 mandates that it

is incumbent on the part of the Court before granting of bail to

any person accused of an offence punishable under MCOCA

that there are reasonable grounds for believing that he is not

guilty of such offence and he is not likely to commit any offence

while on bail.

14)In the Narcotic Drugs and Psychotropic Substances Act,

1985 (in short ‘the NDPS Act’), similar provision, namely,

Section 37, corresponding to Section 21(4) of the MCOCA has

been substituted by Act 2 of 1989 with effect from 29.05.1989

with further amendment by Act 9 of 2001 which reads as

under:

13

Page 14 “37. Offences to be cognizable and non-bailable.—(1)

Notwithstanding anything contained in the Code of Criminal

Procedure, 1973 (2 of 1974),—

(a) every offence punishable under this Act shall be

cognizable;

(b) no person accused of an offence punishable for offences

under Section 19 or Section 24 or Section 27-A and also for

offences involving commercial quantity shall be released on

bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to

oppose the application for such release, and

(ii) 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.

(2)The limitations on granting of bail specified in clause

(b) of sub-section (1) are in addition to the limitations under

the Code of Criminal Procedure, 1973 (2 of 1974) or any

other law for the time being in force, on granting of bail.”

Sub-clause (2) also makes it clear that the limitations on

granting of bail specified in clause (b) of sub-section (1) are in

addition to the limitations under the Code of Criminal

Procedure, 1973 or any other law for the time being in force,

on granting of bail.

15)The above provision was considered by this Court in

Union of India vs. Rattan Mallik Alias Habul, (2009) 2 SCC

624. In this case, Union of India filed an appeal before this

Court challenging the order of the Allahabad High Court

suspending the sentence awarded by the trial Court to the

respondent/accused therein for having committed offences

under Sections 8/27-A and 8/29 of the NDPS Act and granting

14

Page 15 him bail. Considering the limitation imposed in sub-section (1)

(b) of Section 37 of the NDPS Act, this Court held thus:

“12. It is plain from a bare reading of the non obstante

clause in Section 37 of the NDPS Act and sub-section (2)

thereof that the power to grant bail to a person accused of

having committed offence under the NDPS Act is not only

subject to the limitations imposed under Section 439 of the

Code of Criminal Procedure, 1973, it is also subject to the

restrictions placed by clause (b) of sub-section (1) of Section

37 of the NDPS Act. Apart from giving an opportunity to the

Public Prosecutor to oppose the application for such release,

the other twin conditions viz. (i) the satisfaction of the court

that there are reasonable grounds for believing that the

accused is not guilty of the alleged offence; and (ii) that he is

not likely to commit any offence while on bail, have to be

satisfied. It is manifest that the conditions are cumulative

and not alternative. The satisfaction contemplated regarding

the accused being not guilty, has to be based on “reasonable

grounds”.

13. The expression “reasonable grounds” has not been

defined in the said Act but means something more than

prima facie grounds. It connotes substantial probable causes

for believing that the accused is not guilty of the offence he is

charged with. The reasonable belief contemplated in turn,

points to existence of such facts and circumstances as are

sufficient in themselves to justify satisfaction that the

accused is not guilty of the alleged offence (vide Union of

India v. Shiv Shanker Kesari). Thus, recording of satisfaction

on both the aspects, noted above, is sine qua non for

granting of bail under the NDPS Act.

14. We may, however, hasten to add that while considering

an application for bail with reference to Section 37 of the

NDPS Act, the court is not called upon to record a finding of

“not guilty”. At this stage, it is neither necessary nor

desirable to weigh the evidence meticulously to arrive at a

positive finding as to whether or not the accused has

committed offence under the NDPS Act. What is to be seen is

whether there is reasonable ground for believing that the

accused is not guilty of the offence(s) he is charged with and

further that he is not likely to commit an offence under the

said Act while on bail. The satisfaction of the court about the

existence of the said twin conditions is for a limited purpose

and is confined to the question of releasing the accused on

bail.”

15

Page 16 After saying so, on going into the materials placed and the

reasoning of the High Court for grant of bail, this Court has

concluded that the order passed by the High Court clearly

violates the mandatory requirement of Section 37 of the NDPS

Act and set aside the same with a liberty to decide afresh in

the light of the limitations imposed. In the case on hand, we

have already extracted the limitation/restrictions imposed in

Section 21(4) of MCOCA for granting bail.

16)It is relevant to point out that the materials placed by the

prosecution show that one Vijay Shetty and the respondent are

members of Bharat Nepali’s “organized crime syndicate”. It is

also the definite stand of the prosecution that the said Bharat

Nepali as well as Vijay Shetty, who murdered Farid Tanasha

are said to be out of India and are indulging into the organized

crime through the members of the syndicate. The materials

placed further show that Dattatray Bhakare-a builder, was

doing a project at Chembur, Mumbai and some members of

the Co-operative Housing Society had some dispute with him,

therefore, they had approached Farid Tanasha, who had a

criminal background and he also agreed to help those persons

in their dispute with the builder. On knowing this, Dattatray

16

Page 17 Bhakare contacted Bharat Nepali and Vijay Shetty for

eliminating Farid Tanasha and for that he allegedly financed a

sum of Rs.90 lakhs which was paid to the said wanted accused

persons through the arrested accused persons. The

investigation also reveals that about Rs. 9 lakhs were given to

the main shooter – Mohd. Sakib Shahnawaz Alam Khan

(Accused No.2) through Mohd. Rafiq (Accused No. 6). The said

Accused No.6 made a confessional statement as far as the

respondent herein is concerned. It was alleged that Accused

No.6, on the instructions of the wanted accused - Vijay Shetty,

used to collect money from the respondent and on several

occasions, he handed over the same to Accused No. 2. It was

also alleged that on the instructions of the wanted accused –

Vijay Shetty, Accused No. 6 paid a sum of Rs. 15 lakhs to the

respondent herein on 28.05.2011. It is the further case of the

prosecution that in the third week of June, 2010, Accused No.

6 received an amount of Rs. 6 lakhs from an employee of the

respondent. The substance of the allegation against the

respondent is that part of the amount, which was given to the

shooter for killing Farid Tanasha, had been passed on through

him to the actual shooter. It is not in dispute that sanction

17

Page 18 under Section 23(2) of MCOCA had been accorded by the

Commissioner of Police on 25.09.2010.

17)Considering the materials, particularly, in the light of the

bar under Section 21(4) of MCOCA, the Special Court rightly

rejected the application for bail filed by the respondent herein.

From the materials placed, prima facie, it is clear that the

respondent-accused had association with the wanted accused,

Vijay Shetty and Bharat Nepali, who are notorious criminals

and the act of the respondent comes within the definition of

‘abet’ as defined in Section 2(1)(a) of MCOCA.

18)As rightly pointed out by the learned counsel for the State

that the High Court ought to have appreciated the statement of

the co-accused-Mohammad Rafiq that on 28.05.2010, he

collected Rs. 15 lakhs from co-accused- Dattatray Bhakare

and delivered it to the respondent. The confessional

statement further indicates that the wanted accused, Vijay

Shetty used to make calls from cell phone no. 0061290372184

and call records also indicate that the cell phone that was

being used by the respondent did receive overseas calls. The

confessional statement further indicates that he received Rs. 6

lacs from the man of the respondent. The material placed by

18

Page 19 the prosecution also indicate that the respondent has been

working for the wanted accused-Vijay Shetty and he used to

receive ill-gotten money for him. We have already extracted

Section 21(4) which interdict grant of bail to the accused

against whom there are reasonable grounds for believing him

to be guilty of offence under MCOCA.

19)We are satisfied that the High Court failed to appreciate

the fact that the materials placed against the respondent

consist of the confession made by the co-accused – Mohd.

Rafiq which has been recorded under Section 18 of MCOCA,

the statement of the employee of the respondent which

indicates that the respondent handed over cash to him in the

third week of June, 2010 and that the money received by the

respondent and handed over to the main accused were part of

the illegal transactions. The act of the respondent, prima facie,

is well within the definition and also the statement of object

and reasons of the MCOCA which we have already extracted.

The act of the respondent is of the abetment of the offence

enumerated in MCOCA. At any rate, the materials placed by

the prosecution show that the respondent had received ill-

gotten money for the wanted accused – Vijay Shetty and,

19

Page 20 therefore, ingredients of Section 4 of MCOCA were attracted

against him. We are satisfied that all these aspects have been

correctly appreciated by the Special Court.

20)Though the High Court has adverted to all the above-

mentioned aspects and finding that all those aspects have to

be considered during the trial and even after finding that “it

cannot be said that there are no reasonable grounds for

believing that the applicant (respondent herein) has not

committed an offence punishable under the MCOCA”, on an

erroneous view, granted him bail which runs contrary to

Section 21(4) of MCOCA.

21)While dealing with a special statute like MCOCA, having

regard to the provisions contained in sub-section (4) of Section

21 of this 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.

Similarly, the Court will be required to record a finding as to

the possibility of his committing a crime after grant of bail.

What would further be necessary on the part of the Court is to

see the culpability of the accused and his involvement in the

20

Page 21 commission of an organized 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. In view of the

above, we also reiterate that when a prosecution is for

offence(s) under a special statute and that statute contains

specific provisions for dealing with matters arising there under,

these provisions cannot be ignored while dealing with such an

application. Since the respondent has been charged with

offence under MCOCA, while dealing with his application for

grant of bail, in addition to the broad principles to be applied

in prosecution for the offences under the IPC, the relevant

provision in the said statute, namely, sub-section (4) of Section

21 has to be kept in mind. It is also further made clear that a

bare reading of the non obstante clause in sub-section (4) of

Section 21 of MCOCA that the power to grant bail to a person

accused of having committed offence under the said Act is not

only subject to the limitations imposed under Section 439 of

the Code of Criminal Procedure, 1973 but also subject to the

restrictions placed by clauses (a) and (b) of sub-section (4) of

Section 21. Apart from giving an opportunity to the prosecutor

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Page 22 to oppose the application for such release, the other twin

conditions, viz., (i) the satisfaction of the Court that there are

reasonable grounds for believing that the accused is not guilty

of the alleged offence; and (ii) that he is not likely to commit

any offence while on bail, have to be satisfied. The

satisfaction contemplated in clauses (a) and (b) of sub-section

(4) of Section 21 regarding the accused being not guilty, has to

be based on “reasonable grounds”. Though the expression

“reasonable grounds” has not been defined in the Act, it is

presumed that it is something more than prima facie grounds.

We reiterate that recording of satisfaction on both the aspects

mentioned in clauses (a) and (b) of sub-section (4) of Section 21

is sine qua non for granting bail under MCOCA.

22)The analysis of the relevant provisions of the MCOCA,

similar provision in the NDPS Act and the principles laid down

in both the decisions show that substantial probable cause for

believing that the accused is not guilty of the offence for which

he is charged must be satisfied. Further, a reasonable belief

provided points to existence of such facts and circumstances

as are sufficient to justify the satisfaction that the accused is

not guilty of the alleged offence. We have already highlighted

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Page 23 the materials placed in the case on hand and we hold that the

High Court has not satisfied the twin tests as mentioned above

while granting bail.

23)In our opinion, the impugned order having been passed

ignoring the mandatory requirements of Section 21(4) of

MCOCA, cannot be sustained. Accordingly, the impugned

order of the High Court dated 10.08.2011 in Criminal Bail

Application No. 872 of 2011 granting bail to the respondent is

set aside and the order of the special Judge dated 07.05.2011

in M.C.O. Special Case No.10 of 2010 is restored. In view of

the same, the respondent is directed to surrender before the

Special Court within a period of two weeks from the date of

passing of this order, failing which, the special Court is

directed to take appropriate steps for his arrest.

24)The appeal of State of Maharashtra is allowed.

...…………… .………………………… J.

(P. SATHASIVAM)

..…....………………………………… J.

(RANJAN GOGOI)

NEW DELHI;

OCTOBER 19, 2012.

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