http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 27  

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 27  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 27  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 27  

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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 27  

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 27  

(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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 27  

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.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 27  

       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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 27  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 27  

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.