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CASE NO.: Appeal (crl.)  1287 of 2006

PETITIONER: GOKUL BHAGAJI PATIL

RESPONDENT: STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT: 08/12/2006

BENCH: K.G. BALAKRISHNAN & D.K. JAIN

JUDGMENT: J U D G M E N T (Arising out of S.L.P.(Criminal) No. 1572 of 2006)

D.K. JAIN, J.:                 Leave granted. 2.      This appeal by special leave is directed against the  Order, dated 1.2.2006, passed by the High Court of  Judicature at Bombay, affirming the order passed by  Special Judge, Pune, in exercise of powers conferred  under the Maharashtra Control of Organised Crime Act,  1999 (for short "MCOCA"), whereby the application filed  by the appellant for grant of bail was rejected.   3.      The appellant, a former Assistant Commissioner of  Police, Mumbai was posted as a senior Police Inspector at  Mira Road, Police Station, Thane District, during the  period from 2.6.1999 to 13.5.2000. 4.      On or about 15.8.1999, on the basis of some  information about printing of fake revenue and postal  stamps by a gang, received by Mira Road Police Station,  under the charge of the appellant, raids were conducted  at certain places. As a result thereof some persons were  arrested and case (C.R. No. 274 of 1999) under Sections  257, 260, 420, 467, 468 read with 34 of Indian Penal  Code and under Section 55 of the Indian Postal Act, 1898  was registered against them. 5.      It appears that an inquiry was conducted by the  Additional Superintendent of Police, Thane (Rural) in the  manner in which investigation in C.R. No. 274 of 1999  was conducted by the appellant and his team, which  revealed that although the printing press, situated at  Mulund and Bora Bazar, Mumbai, where counterfeit  stamps and stamp papers were being printed had been  identified but the appellant and his Sub-Inspector  Kakade (since dead), incharge of the case, neither sealed  the said premises nor seized the machines; they ensured  that Abdul Karim Ladsab Telgi (hereinafter referred to as  "Telgi"), the Kingpin of the Organised Crime Syndicate  and the prime accused was not arrested and remained at  large till he was arrested by Karnataka Police and the   counterfeit stamps seized in the case were not sent for  examination to the Indian Security Press. In nutshell, the  allegation against the appellant is that being a public  servant he not only rendered help and support in the  commission of Organised Crime as defined in clause (e) of  Section 2 of MCOCA, he knowingly and intentionally  aided and abetted the activities of the Organised Crime  Syndicate till 7.6.2002, thereby enabling them to carry  on their activities for almost three years.  Thus, by  helping and facilitating the Organised Crime Syndicate of

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Telgi in continuing unlawful activities and deliberately  abstaining from taking lawful measures under the  MCOCA against Telgi and his syndicate, he has  committed offences punishable under Sections 3(2) and  24 of the MCOCA. 6.      Based on these investigations a case (C.R.No.135 of  2002) was registered against the appellant and some  other persons at Bund Garden Police Station, Pune.  The  appellant, who by then had been promoted as Assistant  Commissioner of Police was arrested on 18.10.2003 by  the Special Investigation Team, constituted by the State  of Maharashtra.  Since then he is in judicial custody. 7.      Taking into consideration the gravity of charges  levelled against the appellant and, inter alia, observing  that there is no reason to believe that the appellant is not  guilty of the offences, alleged against him, as  contemplated under Section 21(4)(b) of MCOCA, the  Special Judge dismissed his bail application.  This order  having been affirmed by the High Court, the appellant is  before us. 8.      Mr. A.V. Savant, learned senior counsel appearing  for the appellant, has strenuously urged that in the  charge-sheet filed against the appellant there are no  allegations that he had indulged in "continuing unlawful  activities" within the meaning of Section 2(i)(d) of MCOCA  and therefore his case does not fall within the ambit of  Section 3 of MCOCA.  Learned senior counsel submits  that no inference can be drawn from the material on  record that the appellant was a party to the conspiracy or  had abetted commission or facilitation of the crime with  which Telgi or other co-accused were associated and   contends that the circumstances relied upon against the  appellant, namely, the alleged failure either to arrest  Telgi on 15.9.1999 or to seal the printing press could, at  the highest, bring his case within the ambit of Section 24  and not under Section 3(2) of the MCOCA. It is, thus,  urged that the appellant having already been in judicial  custody for more than three years, the maximum  punishment provided under Section 24, he is entitled to  be enlarged on bail.  Learned counsel has also pointed  out that some of the co-accused, namely, R.S. Sharma,  Mohammad Chand Mulani and Babanrao Tukaram  Ranjane, against whom much more evidence is available  have already been enlarged on bail by this Court.   9.      Per contra, Mr. Sushil Kumar, learned senior  counsel appearing for the respondents, while opposing  the prayer for bail by the appellant, has submitted that  there is sufficient material on record to bring home the  charges against the appellant of facilitating the  continuation of unlawful activities by the Organised  Crime Syndicate. Learned counsel, thus, submits that in  view of sub-section (4) of Section 21 of MCOCA, the bail  has been rightly refused to the appellant.  10.     Since the provisions of MCOCA have been invoked  in the present case, in addition to the basic  considerations, namely, the nature and seriousness of  the offence; the character of the evidence; reasonable  apprehension of witness being tampered with and  reasonable possibility of the presence of the accused not  being secured at the trial etc;  which normally weigh with  the courts for granting bail in non-bailable offences, the  limitations imposed in sub-section (4) of Section 21 of  MCOCA need to be kept in view while deciding whether  or not the appellant is entitled to bail. 11.     The nature and scope of sub-section (4) of Section

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21 of MCOCA has been considered and explained by us  in Chenna Boyanna Krishna Yadav vs. State of  Maharashtra & Anr. (Special Leave Petition (Criminal)  No. 1358 of 2006). Interpreting the said provision, we  have observed thus:  "It is plain from a bare reading of the non- obstante clause that the power to grant bail by  the High Court or Court of Sessions is not only  subject to the limitations imposed by Section  439 of the Code but is also subject to the  limitations placed by Section 21(4) of MCOCA.   Apart from the grant of opportunity to the  Public Prosecutor, the other twin conditions  are: the satisfaction of the court that there are  reasonable grounds for believing that the  accused is not guilty of the alleged offence and  that he is not likely to commit any offence  while on bail.  The conditions are cumulative  and not alternative.  The satisfaction  contemplated regarding the accused being not  guilty has to be based on reasonable grounds.   The expression "reasonable grounds" means  something more than prima facie grounds.  It  contemplates substantial probable causes for  believing that the accused is not guilty of the  alleged offence.  The reasonable belief  contemplated in the provisions requires  existence of such facts and circumstances as  are sufficient in themselves to justify  satisfaction that the accused is not guilty of  the alleged offence.  Thus, recording of  findings under the said provision is a sine qua  non for granting bail under MCOCA."

12.     The factors which have weighed with the High Court  for rejecting the appellant’s plea of innocence and his  bail application are; (i) the printing press and other  machinery belonging to Telgi was not sealed; (ii) opinion  regarding the counterfeit nature of the seized stamps was  not obtained from Indian Security Press, Nashik; (iii)  instead of granting permission to the police party which  had searched the press to go ahead with further  investigations, the police party was recalled without  effecting the seizure; (iv) though the police officials,  including the appellant, were aware of the serious lapses  on their part, yet no attempt was made to correct them,  with the result that the prime accused Telgi continued  his illegal activities between 29.8.1999 to June, 2002; (v)  by not arresting the prime accused Telgi, he allowed the  Organised Crime Syndicate to continue its activities and  (vi) though he had wide powers to stop the unlawful  activities, he did not use them conscienously and in  public interest and allowed the Organised Crime  Syndicate to continue their activities unhampered and  unobstructed. 13.     It would not be appropriate at this juncture to go  into detailed examination of the alleged crime in order to  arrive at a positive finding as to whether or not the  appellant has committed offences under Section 3(2) or  24 of MCOCA.  What is required to be considered is  whether in the light of the circumstances, enumerated  above; (i) there is a reasonable ground to believe that the  appellant is not guilty of the two offences he has been  charged with under MCOCA and (ii) that he is not likely  to commit an offence under MCOCA while on bail.   

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14.     We have considered the matter in the light of the  inferences drawn by the High Court from the material on  record and the role attributed to the appellant. After  hearing learned counsel for the parties, we are of the  view that the purported acts of omission and commission  on the part of the appellant may not per se bring his case  within the ambit of Section 3(2) of MCOCA.  Nevertheless,  the aforementioned circumstances do tend to indicate  that as a public servant he had failed to take lawful  measures under MCOCA, attracting the provisions of  Section 24 of MCOCA.  Having reached this conclusion  and bearing in mind the fact that the appellant has been  in judicial custody for over three years, the maximum  period of sentence contemplated under Section 24 of  MCOCA, we are of the view the appellant deserves to be  released on bail. 15.     Accordingly, the appeal is allowed and the order  passed by the High Court is set aside.  It is directed that  the appellant shall be enlarged on bail on his furnishing  a personal bond in the sum of Rs.2 lakhs with two  sureties, each in the like amount to the satisfaction of  the Special Court, Pune.  He shall also remain bound by  all the conditions as stipulated in Section 438(2) of the  Criminal Procedure Code, 1973.  The appellant shall also  surrender his passport, if any, before the Special Court,  Pune. 16.     Any observation touching the merits of the case  against the appellant is tentative, only for the purpose of  this appeal, and shall not be construed as an expression  of final opinion in the matter.