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Tuesday, October 30, 2012

for granting bail under MCOCA. = 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 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. - 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.


                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                                      1


                     2 CRIMINAL APPEAL NO. 1689  OF 2012


               3 (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.
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  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.

(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?
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 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)…….”


      “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 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 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,  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 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?
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 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:
      “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  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.”


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  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  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 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, 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 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 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 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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