Delhi District Court
Fir No. 234/10 State vs . Nadeem @ Kallu 1 Of 501 on 6 August, 2016
THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL
SESSIONS JUDGE(NE), KARKARDOOMA COURTS, DELHI.
SC No. 44949/15
FIR No. 234/10
PS : Shahdara
U/s. 3 (2) & 3 (4) of MCOC, Act
State
Versus
Nadeem @ Kallu
S/o Sh. Nazir Ali @ Nasir Ali
R/o Main Road, Village Behta Hazipur,
Loni, Ghaziabad, UP
Date of Committal : 14.02.2011
Date of Arguments : 07.06.2016
Date of Pronouncement : 06.08.2016
JUDGMENT :
1. Prosecution case: It is the case of the prosecution that on 31.07.2009, SHO PS Shahdara noticed that incidents of crime including theft and robberies were rampant in the area and after FIR No. 234/10 State Vs. Nadeem @ Kallu 1 of 501 discussion with secret informers as well as police officials, it was revealed that accused Nadeem @ Kalu @ Kale @ Ashok along with his associates namely Radhey Shaym, Rakesh, Parveen, Pawan, Balbir, Alam, Jagir, Jahid, Joginder Shahid, and Om Prakash etc. was active in the area to commit theft and robberies. On checking the crime record of accused, it is revealed that a large number of cases were pending against him before different courts of law and he had been earning a lot of money by his criminal activities. Accused had been using the violence, threat of violence and weapons during the offence. SHO made a proposal u/s 23 (1) (a) of MCOC, Act to the then Joint CP Sh. Dharmender Kumar on 24.4.2010 and sent to him through ACP concerned and proposal was accepted and approval for registration of FIR was granted. Present FIR was lodged on the basis of said proposal. Investigation was assigned to ACP Shahdara. During investigation, the details of cases lodged against accused Nadeem and his associates were collected and 28 cases were detected in which accused Nadeem and his associates had committed the offence involving violence, attempt of violence and use of weapons to commit the offence. It is further revealed that accused had formed a crime syndicate which was involved in continuing unlawful activities, jointly or individually, for pecuniary gains and assets worth of Rs. 1,60,20916/- were accumulated by accused from unlawful activities and properties worth of Rs. 49,5416/- were ascertained or recovered from the accused Nadeem. Accused was arrested and charge-sheeted u/s 3 (2) and 3 (4) of FIR No. 234/10 State Vs. Nadeem @ Kallu 2 of 501 MCOC, Act. The then Joint CP granted the approval of prosecution in terms of Section 23 (2) of MCOC, Act, hence this charge sheet.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. This court has framed charges against accused u/s 3 (4) of MCOC, Act against accused on 16.03.2015 and accused pleaded not guilty and claimed trial.
4. To prove the allegations, prosecution has examined PW1 SI Vijay Kumar Gupta, PW2 Retired SI Jai Bhagwan, PW3 SI Girish Chand, PW4 SI Rajiv Kumar, PW5 Inspector Anil Gandhi, PW6 Inspector Dinesh Kumar, PW7 SI Rakesh, PW8 Sh. Mahender Mourya, PW9 Inspector Jitender Kumar, PW10 Manoj Kumar, PW11 Sh. Bhupender Kumar, PW12 Sh. Surya Kumar, PW13 HC Mohanbir Singh, PW14 SI Braham Singh, PW15 Shiv Charan, PW16 HC Surender Singh, PW17 SI Rajender Kumar, PW18 Sh. Kanhiya Lal, PW19 Anil Kumar, PW20 HC Vinod Kumar, PW21 Retired Prasanjeet Singh, PW22 Sunil Kumar, PW23 Inspector Mukesh Kumar, PW24 Retired SI Mehmood Khan, PW25 Ajay Saklani, PW26 Smt. Hemant Kumari, PW27 SI U. Balashankarn, PW28 Retired Inspector Ishwar Singh, PW29 Sh. Dharmendra Kumar, Joint CP, PW30 Retired ACP Dharambir Joshi and closed PE.
FIR No. 234/10 State Vs. Nadeem @ Kallu 3 of 501
5. After PE, entire incriminating evidence explained to the accused under section 313 Cr.P.C. and his statement was recorded. Accused has not preferred any defense evidence accordingly, DE was closed.
6. To prove the case, prosecution has examined PW1 SI Vijay Kumar Gupta who has proved FIR no. 01/10 which is Ex.PW1/11 registered with PS M. S. Park on the statement of one Kishan in which accused Nadeem was formally arrested alongwith his two associates namely Radhey Shayam @ Radhey and Praveen @ Pappu on 28.01.2010. He filed charge sheet Ex.PW1/1 to Ex. PW1/6 for the offences u/s 392/397/34 IPC against accused persons in which cognizance has been taken against accused by the concerned court on 23.03.2010 vide order Ex.PW1/7. It is further deposed that on 13.05.2010, charges had been framed against all three accused vide charge order Ex.PW1/8 and Ex.PW1/9, but accused have been acquitted by the court on 02.07.2010 in this case.
6.1. During cross examination, PW1 has admitted that accused Nadeem was not named in that FIR and arrested by Special Staff on the basis of disclosure statement. It is admitted that no recovery of looted articles could be affected from the accused persons. He was not aware about the credentials of accused in this case.
6.2. PW2, Retired SI Jai Bhagwan, has proved FIR no. 153/05 FIR No. 234/10 State Vs. Nadeem @ Kallu 4 of 501 along with index which is Ex.PW2/1 to Ex.PW2/3. FIR was registered with PS Gulabi Bagh on the statement of one Madan Lal, in which, accused Nadeem was formally arrested along with Rakesh, Bhashir @ Rahuf and Mohd. Zaki. He filed the charge sheet Ex.PW2/4 to Ex. PW2/8 for the offences u/s 379/411/468/471/34 IPC against the accused persons on which cognizance has been taken against accused by the concerned court on 30.9.2005 vide Ex.PW2/9.
6.2.1. During cross examination, PW2 has admitted that the copy of recovery memo is not on record and even charge sheet has not indicated the recovery of robbed tempo or recovery of fake number plate at the instance of accused. It is admitted that accused was arrested on the basis of disclosure statement and also that he did not investigate the financial status of accused Nadeem during investigation. He was not aware about final decision of the case.
6.3. PW3 SI Girish Chand has proved the FIR no. 35/09 which is Ex.PW3/1 registered with PS New Usmanpur in which accused Nadeem was formally arrested with the permission of Ld. MM and his other six associates, as per list Ex.PW3/2, were arrested by Crime Branch, Nehru Place. He filed charge sheet Ex.PW3/3 to Ex.PW3/18 for the offences u/s 365/379/392/395/412/34 IPC against accused persons on which cognizance has been taken against accused by the concerned court on 26.05.2009 vide order Ex.PW3/19. It is further deposed that on 23.10.2010, charges u/s FIR No. 234/10 State Vs. Nadeem @ Kallu 5 of 501 120B, 395/120B and 365/120B IPC have been framed against accused vide charges Ex.PW3/20 to Ex.PW3/23 and charge u/s 412 IPC has been framed against accused Meena Begum.
6.3.1. During cross examination, PW3 has admitted that no recovery was affected at the instance of accused in this case and also that the other accused were arrested on the basis of disclosure statement. He was not aware about final outcome of this case and even did not make efforts for recovery at the instance of accused Nadeem, as it was already affected at the instance of other co-accused.
6.4. PW4 SI Rajiv Kumar has proved FIR No. 171/10 which is Ex.PW4/14 registered with PS Nand Nagri in which accused Nadeem was arrested alongwith his six associates namely Layeek Ahmad, Prem Chand, Shahid, Firoz @ Pappu, Jitender and Ayub. In this case, recovery was affected by PS Sonia Vihar at the instance of accused Nadeem registered with PS Sonia Vihar, due to FIR no. 171/10 was transferred to PS Nand Nagri. He prepared the charge sheet on 10.11.2010 which is Ex.PW4/1 to Ex.PW4/18 and cognizance has been taken on charge sheet vide order Ex.PW4/13.
6.4.1. During cross examination, PW4 has admitted that he is not the recovery witness to FIR No. 171/10 of which recovery memo is not on record. It is admitted that nothing was recovered from accused Nadeem or at his instance. It is further admitted that copy of FIR No. 234/10 State Vs. Nadeem @ Kallu 6 of 501 charge is not on record. It is admitted that he did not verify the bank balance and details of accused Nadeem during investigation of this case and, even was not aware about the final outcome of this case.
6.5. PW5 Inspector Anil Gandhi has proved the FIR No.22/05 which is Ex.PW5/1 registered with PS M. S. Park in which accused Nadeem was arrested alongwith his six associates. He filed the charge sheet Ex.PW5/2 to Ex.PW5/4 against the offences u/s 457/380/411/34 IPC lodged against accused persons and, on 29.10.2005, cognizance has been taken against accused by the concerned court vide order Ex.PW5/5.
6.5.1. During cross examination, PW5 has admitted that no recovery was affected at the instance of accused Nadeem in this case, but it was made at the instance of other accused. It is admitted that FIR was not named and recovery memo is also not on record. He was not aware whether accused has been discharged in this case. It is admitted that accused was formally arrested in case FIR on the basis of disclosure statement.
6.6. PW6 Inspector Dinesh Kumar has proved FIR No.11/05 which is Ex.PW6/1 registered with PS Shahdara on the basis of statement of one Gauri Shanker in which accused Nadeem was arrested along with his five associates. On 03.09.2005, he filed chargesheet Ex.PW6/2 to Ex.PW6/7 against accused persons and recovery of FIR No. 234/10 State Vs. Nadeem @ Kallu 7 of 501 copper wire bundle was affected at the instance of the associate of accused Nadeem. The cognizance has been taken against accused in this case by the concerned court on 09.03.2006 vide Ex.PW6/8.
6.6.1. During cross examination, PW6 has admitted that no recovery was affected at the instance of accused Nadeem in this case and even accused was also not named. Accused was arrested on the basis of disclosure statement of co-accused. It is admitted that no copy of recovery memo is on record and even he was not aware as to whether accused has been acquitted or not.
6.7. PW7 SI Rakesh has proved FIR No. 103/10 which is Ex.PW7/1 registered with PS Sonia Vihar in which accused Nadeem was arrested alongwith his one associate Layak Ahmad. Accused Nadeem was found in possession of one loaded country made pistol and one robbed tempo loaded with 120 aluminum plates was also recovered. It is further deposed that he has filed charge sheet on 15.10.2010 which is Ex. PW7/2 to Ex.PW7/9.
6.7.1. During cross examination, PW7 has admitted that no recovery was affected in his presence and was not aware as to whether accused has been acquitted in this case or not, but accused was apprehended by Special Cell. He has admitted that he has neither seen the cognizance order of the case nor the same is on file.
FIR No. 234/10 State Vs. Nadeem @ Kallu 8 of 501 6.8. PW8 Mahender Mourya, Jr. Judicial Assistant has produced the judicial file of FIR no. 171/10 pending before the court of Sh. Ajay Gupta, Ld. ASJ, Shahdara. Certified copy of cognizance order is Ex.PW4/13 and copy of FIR is Ex.PW4/14 and, copy of charge sheet is Ex.PW4/1 to Ex.PW4/12. Charge has been framed in this case which is Ex.PW8/1 and case is at the stage of PE in which 23 witnesses have been examined. During cross examination, it is admitted that no charge u/s 411 IPC has been framed against accused Nadeem.
6.9. PW9 Inspector Jitender Kumar has proved FIR no. 530/05 which is Ex.PW9/1 to Ex. PW9/7 including index and list of witnesses, registered with PS Khajuri Khas in which accused Nadeem was arrested along with his eight associates. He has filed charge sheet of which copies are Ex.PW9/8 to Ex.PW9/16 lodged u/s 412/395/397/120B IPC against accused persons. Cognizance has been taken against accused by the concerned court vide Ex.PW9/17. Charges Ex.PW9/18 to Ex.PW9/24 have been framed on 29.07.2010 against accused.
6.9.1. During cross examination, PW9 has admitted that accused was arrested on the basis of disclosure statement in some other case. He was not aware whether accused has been acquitted in this case or not, but accused was arrested before the court on production warrant.
FIR No. 234/10 State Vs. Nadeem @ Kallu 9 of 501 6.10. PW10 Manoj Kumar, Mauza Clerk has produced the record of FIR no. 153/05 which is Ex.PW2/1 in which accused has been convicted u/s 468/471 IPC on 14.01.2013. Certified copy of chargesheet is already Ex.PW2/4 to Ex.PW2/8 and cognizance order is Ex.PW2/9. Ld. MM Sh. Amit Arora has framed the charges against accused Nadeem on 07.09.2011 u/s 379/411/468/471 IPC.
6.10.1. PW10 has also produced the record of FIR no. 20/07 registered with PS Gulabi Bagh of which copy is Ex.PW10/1 and copy of chargesheet is Ex.PW10/2 and certified copy of charge dated 07.07.2007 framed against six accused persons including Nadeem is Ex.PW10/3. It is further deposed that on 14.3.2010, accused has been convicted in this FIR by the court of Ld. MM Ms. Ambika Singh in pre Lok Adalat sitting on plead guilty of accused u/s 471/34 IPC vide order sheet Dt. 12.04.2014 which is Ex.PW10/4.
6.10.2. During cross examination, it is admitted that the conviction order of accused is not bearing the name of accused Nadeem but accused persons namely Om Prakash, Balbir Pawan, Vicky and Narender put their signatures on it. The seizure memo Ex.PW10/DA of FIR no. 20/07 was tendered on judicial file pertaining to recovery of TATA 407 in FIR no. 81/07 registered with PS Bawana. Copy of charge dated 07.09.2011 in FIR no. 171/05 is Ex.PW10/DB.
FIR No. 234/10 State Vs. Nadeem @ Kallu 10 of 501 6.11. PW11 Bhupender Kumar has produced the record of FIR no. 22/05 registered with PS Ms Park pending before court of the then Ld. MM Sh. Achal Tyagi. Copy of FIR is Ex.PW5/, Copies of charge sheet are Ex.PW5/2 to Ex.PW5/5. During cross examination, it is admitted that some of accused have been discharged in this case vide order Ex.PW11/DA.
6.12. PW12 Surya Kumar, Ahlmad has produced the record of FIR no. 35/09 registered with PS New Usmanpur pending against six accused including Nadeem. Copy of FIR is Ex.PW3/1 and Copies of charge-sheet are Ex.PW13/3 to Ex. PW13/18. Cognizance order is Ex.PW3/19. Copies of charges are Ex.PW3/22 and Ex.PW3/23. In this FIR, six accused including accused Nadeem are facing trial. During cross examination, it is admitted that no charge u/s 411 IPC has been framed against accused Nadeem.
6.13. PW13 HC Mohanbir Singh has produced the list of computer record of involvement of accused in 30 cases of which details are Ex.PW13/1 to Ex.PW13/3. The details of chargesheets are Ex.PW13/4 to Ex.PW13/7 and, as per involvement list, accused has been acquitted in three cases, discharged in ten cases, and seventeen are pending trial. During cross examination, he was not aware about the actual number of cases in which accused has been acquitted, discharged or facing trial.
FIR No. 234/10 State Vs. Nadeem @ Kallu 11 of 501 6.14. PW14 SI Braham Singh has produced State Crime Record of accused which is Ex.PW14/1, as per which, Nadeem is involved in 30 cases. The application moved by IO to obtain the details and computer record are Ex.PW13/4 to Ex. PW13/7. During cross- examination, he was not aware about the status of cases of which record has been produced by him.
6.15. PW15 Retired SI Shiv Charan has produced the record of FIR no. 448/06 in which he arrested the accused alongwith nine other co-accused and filed chargesheet. He has further proved the record of FIR no. 45/07 registered with PS Shahdara against accused Nadeem and three of his associates. FIR no. 448/06 was registered u/s 380 IPC at the instance of one Sudhir Chawla. Copies of FIR and other documents are Ex.PW15/A1 to Ex.PW15/A5, but accused Nadeem was absconding at that time. The cognizance of offence has been taken in the case and chargesheet Ex.PW15/B was filed against a theft of Rs. 60,000/-70,000/-. FIR no. 45/07 copies of which are Ex.PW15/C to Ex.PW15/C2 was registered u/s 380 IPC against accused Nadeem and his three associates. Certified of chargesheet is Ex. PW15/D and it was against a loss of Rs. 50,000/-. At the time of arrest of accused Nadeem was in JC. The cognizance was taken on 21.05.2007.
6.16. PW16 HC Surender Singh has produced the record of FIR no. 530/05, u/s 365/379/34 IPC, registered with PS Khajuri Khas.
FIR No. 234/10 State Vs. Nadeem @ Kallu 12 of 501 Copies of FIR along with annexure are Ex.PW9/1 to Ex.PW9/7.
6.17. PW17 SI Rajender Kumar got registered FIR No. 14/10 which is Ex.PW17/A was lodged u/s 382/34 IPC in pursuance of DD no. 7A registered with PS Geeta Colony against the recovery of a TATA 407 bearing registration no. DL-11B-7738. He arrested seven accused including accused Nadeem in this case and received the vehicle from police officials of Ghaziabad. He got transferred the case property comprising of 109 rolls of clothes worth of Rs. 1.5 Lacs. Chargesheet Ex.PW17/B was filed by ASI Mehmood Khan. During cross examination, it is admitted that nothing was recovered at the instance of accused Nadeem and even he did not obtain the ownership proof of the clothes rolls seized from the accused.
6.18. PW18 Kanhiya Lal has produced the record of FIR Nos. 11/05, 448/06 and 45/07 registered with PS Shahdara. He has proved the certified copies of FIR No. 11/05 which is already Ex.PW6/1 to Ex. PW6/8. The certified copy of chargesheet in FIR no. 448/06 is Ex.PW15/A1 to Ex.PW15/A18. The copy of FIR and chargesheet of FIR no. 45/07 are Ex.PW15/C1 to Ex.PW15/D and Ex.PW18/3. During cross examination, it is admitted that accused has been discharged in FIR no. 45/07 and FIR no. 11/05, but he was not aware about the fate of other cases.
FIR No. 234/10 State Vs. Nadeem @ Kallu 13 of 501 6.19. PW19 Anil Kumar, Judicial Assistant has produced the record of FIR No. 14/10 registered with PS Geeta Colony against seven accused including accused Nadeem and the same is pending before the court of Ms. Suarbhi Sharma. He has proved the certified copies of FIR as Ex.PW17/A and Ex.PW17/B. Certified copy of chargesheet is Ex.PW19/A1 to Ex. PW19/A14 and copies of order sheets are Ex.PW19/B1 to Ex. PW19/B2.
6.20. PW20 HC Vinod Kumar has produced the record of FIR no. 20/07 which is Ex.PW10/A got registered by him. During investigation, he arrested accused Balibir Singh @ Sagar Sahni, Pawan Kumar, Om Prakash, Narender Pal @ Tittoo and Vicky, but accused Nadeem and Pappu were absconding. Case property was recovered by Special Staff. He filed chargesheet against five persons which is Ex.PW10/2 and charges have been framed against accused on 07.07.2007 vide Ex.PW10/3. During cross examination, it is admitted that neither accused was arrested nor recovery was affected by him at his instance of accused and even arrest was made on the basis of disclosure statement.
6.21. PW21 Retired SI Prasanjeet Singh has deposed that on 26.04.2010, SHO Inspector Ishwar Singh presented a rukka on which he made endorsement Ex.PW21/A and got registered FIR Ex.PW21/B vide DD no. 42A through computer operator u/s 3 of MCOC, Act and investigation was assigned to ACP Dhramvir Joshi.
FIR No. 234/10 State Vs. Nadeem @ Kallu 14 of 501 6.22. PW22 Sunil Kumar, Chief Manager, Central Bank of India has deposed that on the request of IO which is Ex.PW22/1, he provided the details of account no. 1214035706 in the name of Nazma and account no. 1214150707 in name of Meena, which are Ex.PW22/B and Ex.PW22/C. He conceded the request letter Ex.PW22/D and provided the accounts details Ex.PW22/E (colly). He has produced the documents on which basis account was opened by Meena and Nazma which are Ex.PW22/F to Ex.PW22/H. The accounts of Nazma was opened on 19.06.2003 and accounts of Meena was opened on 24.11.1989, but bank balance in the accounts of Meena was Rs. 1744/- and amount of Nazma was zero. Nazma carried out the last transaction in her bank accounts on 30.7.2012 and Meena carried out the last transaction in her bank accounts on 27.01.2014.
6.22.1. During cross examination, it is admitted that between the period from 10.03.2007 to 30.6.2013, maximum balance in account of Nazma was Rs. 57,813/- and Rs. 49,500/- were deposited in the accounts of Nazma on 22.07.2008 which was maximum amount. It is further deposed that as per bank statement Ex.PW22/G, cash was deposited only once and three transfers by credit entries were made.
6.23. PW23 Inspector Mukesh Kumar has proved FIR no. 112/06 registered with PS Tilak Marg. Copy of FIR Ex.PW23/A and rukka is Ex.PW23/B. He arrested the accused Nadeem alongwith four other FIR No. 234/10 State Vs. Nadeem @ Kallu 15 of 501 associates for the offences u/s 402/399/186/353/307/34 IPC and 25 of Arms Act as one country made pistol, three live cartridges and one fired cartridge were recovered from accused Nadeem. He prepared charge-sheet Ex.PW23/C and charge Ex.PW23/D has been framed in this case. Copy of chargesheet is Ex.PW23/E. During cross examination, it is admitted that SI Narender, who was complainant, had not disclosed about the place and person was intended to be robbed by accused. He was not aware about the final outcome of the case.
6.24. PW24 Retired SI Mehmood Khan has proved record of FIR no. 14/10 registered with PS Geeta colony in which accused alongwith his associates arrested for the offences u/s 382/365/395/412/34 IPC. Copy of FIR is Ex.PW17/A, Certified copy of chargesheet is Ex.PW19/A1 to Ex. PW19/A14 and cognizance order is Ex.PW19/B1. During cross examination, it is admitted that no recovery was effected at the instance of accused Nadeem and even not aware as to what role was played by accused Nadeem during incident.
6.25. PW25 Sh. Ajay Shuklani, Jr. Judicial Assistant has produced the record of FIR no. 04/2010 registered with PS Gokal Puri for the offences u/s 392/397/34 IPC in which cognizance has been taken. Copies of FIR and chargesheet are Ex.PW25/A to Ex. PW25/D. FIR No. 234/10 State Vs. Nadeem @ Kallu 16 of 501 6.26. PW26 Hemant Kumari, Jr. Judicial Assistant has proved the record of FIR No. 103/10 for the offence u/s 25 of Arms Act registered with PS Sonia Vihar. Copy of FIR is Ex.PW7/1 and certified copies of chargesheet, cognizance order and order sheets are Ex.PW26A. Charge u/s 25 of Arms Act has been framed against accused along with co-accused which is Ex.PW26/B and Ex.PW26/C. Accused has been acquitted in this case.
6.27. PW27 SI U. Balashankaran has proved the record of FIR no. 117/05 registered with PS M. S. Park against accused alongwith his three associates. Copy of FIR is Ex.PW27A. It was case of decoity. He prepared chargesheet of which copies are Ex.PW27/B1 to Ex.PW27/B7 and copies of charges are Ex.PW27/C1 to Ex.PW27/C6. Chargesheet was prepared against accused Nadeem and his three associates for the offences under Section 402/399/34 IPC and 25 of Arms Act. During cross examination, he has deposed that he did not apprehend the accused but he was produced by SI Partap Singh, but no valuable articles or cash were recovered from accused during investigation.
6.28. PW28 Retired Inspector Ishwar Singh has deposed that on 31.07.2009, he took over the charge of SHO, PS Shahdara. In those days, crimes of theft and burglary were rampant. He discussed the situation with secret informer and it was revealed that accused Nadeem was involved in those cases. Accused Nadeem used to visit FIR No. 234/10 State Vs. Nadeem @ Kallu 17 of 501 the area alongwith his associates namely Radhey Shyam, Rakesh Kumar, Praven, Pawan Kumar, Balbir Singh Alam, Jakir, Jahid, Virender, Shahzad and Om Prakash etc. to commit the offence and was involved in the theft and robberies of godown and other thefts. It is further deposed that he checked the record of accused Nadeem in PS and revealed that even stolen articles were recovered from his possession. He collected crime record of accused from CRO and found him involved in 28 cases and further revealed that accused Nadeem had organized a gang to commit crime and has earned benami properties by crime. He prepared the draft for registration of FIR and moot out a proposal before Senior Officers on 29.03.2010 for invoking MCOCA against accused, which is Ex.PW28A, and presented proposal before the then Joint C.P through ACP, who accorded the permission on 24.04.2010, which was received by him on 26.04.2010. He prepared rukka which is Ex.PW28/B and presented before Duty officer for registration of FIR, on which basis, FIR which is Ex.PW28/B was registered and investigation was assigned to ACP Shahdara.
6.28.1. During cross examination, PW28 has deposed that he was not aware whether accused was in JC at the time of making proposal in this case. It is further deposed that he came to know that accused was head of a gang of thieves, but he neither had personal knowledge about the registration of 28 cases against accused nor about the recovery made at the instance of accused. He was not FIR No. 234/10 State Vs. Nadeem @ Kallu 18 of 501 aware whether accused has been discharged in maximum cases lodged against accused as he did not collect the evidence of those cases at the time invoking MCOC, Act against him. It is further deposed that he has not seen the house of accused at Hajipur, U.P. and even did not try to ascertain as to when that house at village Behta was purchased and for what amount. He neither ascertained the ownership nor collected the documents of the ownership of above said house. Even he did not collect the ownership documents of alleged property situated at Khoda colony or of any of the properties pertaining to accused and his family members. It is denied that no property was found in the name of accused or his family members. He did not collect any document till moving proposal that accused had collected unaccounted wealth in the capacity of a leader of thieves.
6.29. PW29 Dharmendra Kumar, Joint C.P, has deposed that on 24.04.2010, a proposal against accused Nadeem was made by PW28, which is Ex.PW28/A1 to Ex. PW28/A11 and, he accorded his permission for registration of FIR u/s 23 (1) (a) MCOC, Act. Again, on 5.2.2011, he accorded the sanction for prosecution of accused u/s 23 (2) of MCOCA, which is Ex.PW29/B. 6.29.1. During cross examination, PW29 has deposed that he was not aware about the necessary requirement of MCOCA for granting approval, but he considered the requirements as prescribed under FIR No. 234/10 State Vs. Nadeem @ Kallu 19 of 501 MCOC, Act, but did not try to ascertain the recoveries made from accused in cases disclosed in approval and only considered the minimum requirements of provision. He considered the previous cases against the accused but no document of property of accused, either movable or immovable, was sent for approval at the time of sanction. He did not try to ascertain the recoveries or truthfulness of the cases mentioned in the approval. It is further deposed that he accorded the sanction but has also admitted that he has not denied any sanction in any of the cases. It is further deposed that he had gone through the chargesheets and other documents collected by IO during investigation before granting the sanction. It is further deposed that he did not seek any explanation from IO as to why he had sought sanction after a period of 6 months of initial sanction to lodge an FIR. It is denied that he has not applied his mind before granting sanction.
6.30. PW30, Retired IO ACP Dharambir Joshi has deposed that on 22.3.2010, SHO Inspector Ishwar Singh put a proposal which is Ex. PW28/A2 to Ex.PW28/A11 before him for registration of FIR against accused and he forwarded the proposal for legal opinion. It is further deposed that he made an endorsement Ex.PW30/A on the proposal moved by the SHO and the concerned Public Prosecutor also gave his positive opinion which is Ex.PW30/B and he forwarded the proposal to DCP, North East vide endorsement Ex.PW30/C which was further forwarded to Joint C.P on 29.03.2010 vide endorsement FIR No. 234/10 State Vs. Nadeem @ Kallu 20 of 501 Ex.PW30/D. It is further deposed that on 24.04.2010, the than Joint C.P. granted the approval for registration of FIR which is Ex.PW30/E and on receiving of proposal back on 26.04.2010, he directed the SHO Shahdara to register an FIR which was registered on the basis of rukka Ex.PW28/B. He was assigned the investigation and was handed over the copy of FIR and rukka.
6.30.1. During investigation, he collected the information regarding the status of pending cases against accused and could detect 28 cases pending against accused, out of which, in 20 cases charge- sheet has been filed, in 19 cases cognizance has been taken and in 13 cases charges has been framed. He collected the documents pertaining to the cases. He also wrote a letter to Tehsildar, Ghaziabad to find out the property details of family members of accused Nadeem, but no immovable property was found in the name of accused and his family except one house in the name of the mother of accused in which family had been residing. He also wrote letters to different Banks to know the bank balance in the name of accused and family members and collected the accounts details Ex.PW22/G and Ex.PW22/G1 found in the names of Nazma and Meena and accounts having entries of Rs. 50,000/- each. He wrote letters Ex.PW22/A to Ex.PW22/E to the Bank Manager. It is further deposed that in the month of September, 2010, accused was in judicial custody in FIR no. 171/10 due to he was got produced before the concerned court and was arrested in this case on 09.09.2010 FIR No. 234/10 State Vs. Nadeem @ Kallu 21 of 501 vide arrest memo Ex.PW30/F and intimation of arrest was given to one Ashu who was maternal uncle of accused.
6.30.2. PW30 has admitted that during investigation, accused disclosed that he formed a crime syndicate and started committing robberies, thefts, dacoities etc. since the age of 22 years. He was not maintaining the bank account in his name, but his mother and wife were maintaining bank accounts with Central Bank of India. It is further deposed that he visited Bhagpat with accused to ascertain the properties but no clue could come forward, but maternal uncle of accused namely Fazlu was interrogated there, but no information could be gathered regarding assets of the accused. It is further deposed that accused disclosed that he had earned approximately Rs. 8-10 lacs after committing the robberies and decoities and whatever was earned by him was distributed amongst the gang members. It is further deposed that he did not have any other sources of income except crime and also disclosed the names of gang members. It is further deposed that during investigation it was revealed that accused had accumulated properties worth of rupees one Crore, but the properties worth of less than Rs. 50 Lacs could be ascertained. It is further deposed that on 03.02.2011, he again submitted an application Ex.PW30/G with DCP, NE to forward to the than Joint C.P for seeking sanction of the trial and same was accorded by concerned Joint C.P. He also collected the criminal record of accused and chargesheeted the accused in this case, but FIR No. 234/10 State Vs. Nadeem @ Kallu 22 of 501 he did not make inquiry pertaining to pecuniary gain of the accused.
6.30.2. During cross-examination, PW30 has admitted that he received the copy of FIR and rukka on 26.04.2010 but he did not involve personally in the proceedings conducted by SHO except making his endorsement Ex.PW30/C. He did not make inquiry regarding pecuniary gain of accused from the crime before forwarding the application for legal opinion. It is further admitted that at the time of approval from Joint C.P, he was not involved in any inquiry due to he has no personal knowledge about the approval of registration of FIR. He was also not aware in how many cases accused Nadeem has been discharged on the first day of his appearance before the concerned court, but he came to know that in accused has been discharged in 10 cases, but he has deposed that he cannot give details without going through the record. It is further admitted that copy of conviction or sentence orders have not been placed on record but those were verified from concerned PS. It is further admitted that he has not placed on record the recovery memos of cases against accused which are mentioned in the proposal for registration of FIR, but it is denied that no recovery was affected due to recovery memo has not been placed on record.
6.30.3. PW30 has further admitted that as per report of Tehsildar, no immovable property was found in the name of accused and his family members except one house in the name of Smt. Meena who FIR No. 234/10 State Vs. Nadeem @ Kallu 23 of 501 is mother of accused and house was purchased in the year 1999. He was not aware about the value of that house. It is further admitted that no record of movable or immovable property of accused could be ascertained during investigation as the same was not found, but he was not aware whether accused was residing in his native village or not. It is further admitted that the father of accused was earning his livelihood from his own earnings being rickshaw puller. It is further deposed that he did not remember as to whether report of Tehsildar was sent to Joint CP with application to get sanctioned to prosecute the accused Nadeem. He did not record any disclosure statement of accused regarding disclosures made by accused in cases and even statement of Fazlu was also not recorded during his visit to Baghpat. He did not collect any document of earning of accused for Rs. 8-10 Lacs from unlawful sources or by the organized crime. It is further deposed that he could not recover the money earned by accused from his share from crime committed along with his associates as same had already spent by them. It is further admitted that even the members of gang of accused have not been arrested in this case and even he did not try to recover the alleged earned share money of the accused received from the gang- members.
6.30.4. PW30 has further admitted that the letter written to bank to verify the accounts of associates of accused is also not on record. It is further admitted that he has filed the list of involvement of accused FIR No. 234/10 State Vs. Nadeem @ Kallu 24 of 501 in the cases and also of the recoveries made in those cases, but no document has been placed on record. It is admitted that no document pertaining to the thefts and robberies allegedly committed by accused has been seized and even the amount of those cases was not found in possession of the accused nor has been placed on record. He did not receive any complaint personally that accused Nadeem intimidated to witness in this case. It is denied that accused has been falsely implicated in this case.
7. I have heard the arguments and perused the record. From the testimonies of PWs who are mainly official witnesses, it is revealed that 27 witnesses, out of 30 witnesses, are pertaining to the case record of the accused in which he was involved along with his associates. The other witnesses are either complainant, who invoked MCOCA against accused, or IO has investigated this case and also the then Joint C.P, who accorded the sanction for registration of FIR and prosecution in this case.
8. To prove the charges under MCOCA, it is necessary that the legal requirements of Section 2 (d), (e) & (f) of MCOCA must be satisfied besides the necessity of Section 23 of MCOCA. I am taking up all the ingredients of the MCOCA to see as to whether the requirements of MCOCA are satisfied or not. Section 2 (d), (e) and
(f) are the material ingredient which is as under:
FIR No. 234/10 State Vs. Nadeem @ Kallu 25 of 501 Section 2(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 organized crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence:
Section 2(e)- "Organized crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized 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."
Section 2(f)-"organized 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 organized crime."
As such, the above said definition is exhaustive to include specific type of crimes committed in the organized manner.
FIR No. 234/10 State Vs. Nadeem @ Kallu 26 of 501
9. The above said definition has been elaborated by the Hon'ble Bombay High Court in Madan S/o RamKisan Gangwani v. State of Maharashtra 2009 All M R(Cri) 1447 and has laid down that to charge a person for organized crime or being a member of organized crime syndicate, it would be necessary to prove that the person concerned have indulged in:
(i) an activity,
(ii) which is prohibited by law,
(iii) which is cognizable offence punishable with imprisonment
for three years or more,
(iv) undertaken either singly or jointly,
(v) as a member of organized crime syndicate i.e. acting as a
syndicate or a gang, or on behalf of such syndicate.
(vi) (a) in respect of similar activities (in the past) more than one charge sheets have been filed in competent court within the proceeding period of ten years
(b) and the court has taken cognizance of such offence
(vii) the activity is undertaken by:
(a) Violence, or
(b) Threat of violence, or intimidation or
(c) Coercion or
(d) Other unlawful means
(viii) (a) with the object of gaining pecuniary benefits or gaining undue or other advantage or himself or any other person, or
(b) with the object of promoting insurgency.
FIR No. 234/10 State Vs. Nadeem @ Kallu 27 of 501 Para 115. If the provisions of the Act are read in entirety, in the foregoing discussion, they will show that offence of "organized crime" is constituted by at-least one instance of continuation, apart from continuing unlawful activity evidenced by more than one charge-sheet in preceding ten years: This is so because :
(a) If "organized crime" was synonymous with "continuing unlawful activity", two separate definitions were not necessary.
(b) The definitions themselves show that ingredients of use of violence in such activity with the objective of gaining pecuniary benefits or not included in definition of "continuing unlawful activity", but find place only in definition of "organized crime".
(c) What is made punishable under section 3 is "organized crime"
and not "continuing unlawful activity".
(d) If "organized crime" were to refer to only more than one charge sheet filed, the classification of crime in section 3 (1)(i) and 3(1)(ii) on the basis of consequence of resulting in death or otherwise would have been phrased differently, namely, by providing that "if any one of such offences has resulted in the death", since continuing unlawful activity requires more than one offence. Reference to "such offence" in Section 3(1) implies a specific act or omission.
(e) If the offence of organized crime itself is comprised of previous offences in respect of which charge-sheet have been filed, or in other words such charge sheets are a component of the offence of organized crime, all such offences referred to in FIR No. 234/10 State Vs. Nadeem @ Kallu 28 of 501 such charge sheets could be tired at one tria,l and the rider in section 7 about triability of the accused under the Code at the same trial would be redundant.
(f) Entire Section 18 of the Act would become redundant if "continuing unlawful activity" evidenced by proof of filing of two chare sheets is equal to organized crime, since question of recording confessions would not arise. Certified copies of charge sheets, with certified copy of order thereon by the Court taking cognizance would be admissible without formal proof and if this itself was enough to constitute offence, no other evidence would be required, to be tendered.
(g) For the same reason, there may be no need to examine any witnesses and consequently Section 19 would be redundant.
(h) If proof of filing two charge sheets is enough to establish offence of organized crime, there may be no occasion to carry out any investigation, other than collecting copies of charge sheets. Consequently, it would be unnecessary for high ranking police officer to wield the power to allow recording information or to sanction prosecution after such charge sheets are collected.
116. The legal principles that emerge from the foregoing discussion are:
(i) As held by the Supreme Court in State of Maharashtra and others v. Lalit Nagpal Somdatta Nagpal and another, reported at FIR No. 234/10 State Vs. Nadeem @ Kallu 29 of 501 (2007) 4 SCC 171, the provisions of MCOC Act have to be strictly interpreted.
(ii) Since the definition clauses, Section 2 (d), (e) and (f), use the word "means", the definitions are exhaustive.
(iii) The definitions are unambiguous and words used are not susceptible to two interpretations.
(iv) As observed by the Apex court in Ranjitsingh Brahmajeetsingh Sharma v. State of Maharashtra and another, reported at 2005 Cri LJ 2533, the words "other unlawful means" have to be read ejusdem generis, the phrases " by use of violence" etc.
(v) Similarly, the words "other advantage" has to be read ejusdem generis" pecuniary benefits" as held by a Division Bench of this Court in Sherbahadu Akram Khan and others v. State of Maharashtra, reported in 2007 (1) Bom CR (Cri) 26.
(vi) As held by a Division Bench of this court in Bharat Shantilal Shah v. State of Maharashtra, reported at 2003 ALL MR (Cri) 1061, and Jaisingh Asharfilal Yadav and others v. State of Maharashtra and another, reported at 2003 ALL MR (Cri) 1506, continuing unlawful activity evidenced by more than one charge sheets is one of the ingredients of the offence of organized crime and the purpose FIR No. 234/10 State Vs. Nadeem @ Kallu 30 of 501 thereof is to see antecedents and not to convict, without proof of other facts which constitute the ingredients of section 2(e) and Section 3, which respectively define commission of offence of organized crime and prescribe punishment.
(vii) Approval for recording information under section 23 of MCOCA wound not restrict the scope of investigation and would not exclude filing of charge sheets in respect of incidents or involvement of persons disclosed in course of investigation.
(viii) There would have to be some act or omission which amounts to organized crime after the Act came into force, in respect of which the accused is sought to be tried to the first time, in the special court (i.e has not been or is not being tired elsewhere).
After applying the above said principles, the Hon'ble Court set aside the convictions of the accused persons and acquitted them u/s 3(i) or 3(ii) of MCOCA.
10. Further, The Hon'ble Bombay High Court has defined section 2(d) of MCOCA in State of Maharashtra v. Rahul Ramchandra Taru 2011 ALL MR (Cri) 2100 and has held that it is clear that one or more charge sheets, containing allegations that the alleged offence was committed either singly or jointly as a member of the organized crime syndicate or on behalf of such syndicate, is sine qua FIR No. 234/10 State Vs. Nadeem @ Kallu 31 of 501 non for invoking stringent provisions of MCOCA. This follows that mere filing of more than one charge sheet within the proceedings period of ten years, alleging commission of cognizable offence punishable with imprisonment of three years or more, is not enough. In the case of Ranjeetsingh Brahmajeetsing Sharma v. State of Maharashtra and another, 2005 ALL M R (Cri) 1538 (SC), the Supreme Court observed that:
"The Statement of Objects and Reasons clearly states 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 the MCOC, Act seeks to prevent or control. In other words, an offence falling within the definition of organized crime and committed by an organized 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 charge sheet 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".
In order to constitute "continuing unlawful activity" following requirements of law should be satisfied:-
FIR No. 234/10 State Vs. Nadeem @ Kallu 32 of 501
(i) more than one charge sheet, alleging commission of
cognizable offence punishable with imprisonment of three year of more;
(ii) a charge sheet should consists of averments, alleging unlawful activity undertaken either singly or jointly by the accused;
(iii) as a member of organized crime syndicate or on behalf of such syndicate;
(iv) the cognizance of such offence is taken by the competent court.
In order to bring an alleged act within the ambit of the MCOCA, the aforementioned requirements are mandatory. The word "in respect of which" occurring in the definition clause of "continuing unlawful activity" connotes that it is not a normal charge sheet, alleging commission of cognizable offence punishable with imprisonment of 3 years or more. The charge sheet sans allegations that the alleged act is undertaken either singly or jointly by the accused who is member of an organized crimes syndicate or is undertaken on behalf of such syndicate, would not fall within the ambit of the expression "continuing unlawful activity", occurring in MCOCA.
11. The Full Bench Judgment of the Hon'ble Bombay High Court pronounced in State of Maharashtra v. Jagan Gangansingh Nepali @ Jagya and another 2011ALL MR (Cri) 2961 is relevant to FIR No. 234/10 State Vs. Nadeem @ Kallu 33 of 501 be considered in which all the relevant mandatory provisions of MCOCA have been discussed in detail especially section 2(e) of MCOCA. The relevant Paras of the judgment are as under:
Para: 31. Applying these principles, it can be seen that the existing legal framework i.e. the penal and procedural laws and the adjudicatory system were found to be in inadequate to curb or control the menace of organized crime. It was found that the organized crime had become a serious threat to the society beyond national boundaries and is fuelled by the illegal wealth achieved by contract, killing, extortion, smuggling in contrabands, illegal trade in narcotics, kidnapping for ransom, collection of protection money and money laundering etc. It was found that the illegal wealth and black money generated by the organized crime being very huge, it had serious adverse effect on the economy. It was further seen that the organized criminal syndicates made a common cause with terrorist gangs and foster narco terrorism which extend beyond the national boundaries. It was further found that he organized criminals have been making extensive use of wire and oral communications in their criminal activities. In this background, it was found necessary 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.
FIR No. 234/10 State Vs. Nadeem @ Kallu 34 of 501
32. The Preface would show that it was also found that the criminal activities like murders of tycoons related to film industry as well by builders, extortion of money from business, abduction etc. showed that criminal gangs are active in the State. It can, thus, be seen that it was hoped that with the passing of this law, unlawful elements spreading terrorism in the society can be controlled to be a great extent and it will go a long way in minimizing the feeling of fear spread in the society.
33. It can, thus, clearly be seen that the purpose behind enacting MCOCA was to curb the activities of the organized crime syndicates or gangs. The perusal of the Preamble and the Statement of Objects and Reasons and Preface, in our considered view, does not lead to any narrower meaning that MOCACA has been enacted only for the purpose of curbing activities which involve pecuniary gains or undue economic advantages. The mischief which is sought to be cured by enactment of MCOCA is to curb and control menace or organized crime. The law has been enacted with the hope that the elements spread by the organized crime in the society can be controlled to a great extent and for minimizing the fear spread in the society. If a narrow meaning as sought to be place is accepted, it will frustrate the object rather than curing the mischief for which the Act has been enacted.
38. It is difficult to accept the contention that if the wider meaning is FIR No. 234/10 State Vs. Nadeem @ Kallu 35 of 501 given to the provisions of section 2(1)(e), provisions of MCOCA would be invoked even for petty offences. In case of Sherbahardur AKram Khan v. State of Maharashtra, some of the offences resulted from the quarrel at public water tap. In the said matter, in many of the cases, the accused has assaulted the injured with a fist blow. By no stretch of imagination, such an activity could be construed to be one for which could be invoked. It there are some altercations between two businessmen within four corners of shop and, as a result of which one of them slaps the other, by no stretch of imagination it can be said to be an offence which MCOCA is to be invoked. Similarly, a dispute between two brothers on one property issue and even assault and that too by a deadly weapon would not come in the ambit of MCOCA. The legislative intent is clear, that MCOCA is for curbing the organized crime. Unless there is prima facie material, firstly, to establish that there is an organized crime syndicate and, secondly, that organized crime has been committed by any member of organized crime syndicate or any person on behalf of such syndicate, the provisions of MCOCA cannot be invoked. In the earlier paragraph we have discussed in detail as to what are the ingredients so as to constitute an offence of "organized crime". The prosecution will, therefore, have to firstly establish that there is an organized crime syndicate; it will have to satisfy that there exist the ingredients of "continuing unlawful activity". It will, therefore have to satisfy that the ingredients of the "organized crime" as spelt out by us hereinbefore exist, prior to invoking the provisions of FIR No. 234/10 State Vs. Nadeem @ Kallu 36 of 501 MCOCA. We are, therefore, unable to accept the contention that if the wider meaning is given, the MCOCA can be invoked even for sundry offences. As held by the Apex Court in the case of Ranjitsing Brahmajeetsing Sharma, merely because the person who 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. By the same analogy, if a person commits murder more than once, would not by itself be sufficient to attract the provisions of MCOCA.
At the cost of repetition, we make it clear that unless all the ingredients to constitute the offence punishable under MCOCA are available, it will not be permissible to invoke the provisions of MCOCA.
As such, the above said criteria is necessary requirements to constitute and prove an offence under MCOCA and present case is also to be seen and proved by prosecution in the similar manner.
12. In the present case, prosecution has examined as far as 27 witnesses i.e. PW1 to PW27 to prove the previous involvement of the accused in 30 cases lodged against him in which cognizance has been taken and punishment provided in those cases is also more than three years. Even a number of accused were involved in those cases along with accused Nadeem who used violence, threat of violence and unlawful means to commit such offences, but in mostly cases, accused has been either acquitted or discharged. However, FIR No. 234/10 State Vs. Nadeem @ Kallu 37 of 501 he is still facing trial in some of the cases and also has been convicted in as many as four cases on the basis of plead guilty or plea bargaining. In fact, it stands proved by the evidence of the PW1 to PW27 that accused was involved in continuing unlawful activity, but it is not proved that those activities were for pecuniary gain or economic gain as prosecution has not collected any evidence that the accused committed the offence for pecuniary gain. Prosecution even has not collected any evidence that he committed the offence in the capacity of organized crime syndicate or as a member on behalf of syndicate.
13. To determine the previous involvement of the accused, it is necessary to go through the cases lodged against the accused which is the basis of invoking MCOCA against the accused. FIR No. 01/10 which is Ex.PW1/11 of which chargesheet is Ex.PW1/1 to Ex.PW1/6 was lodged u/s 392/397/34 IPC against the robbery of Rs.75,000/-, but accused Nadeem was not named in this case and has been acquitted. Even no recovery of robbed article was made from accused. FIR No. 153/05 which is Ex.PW2/1 to Ex.PW2/3 of which chargesheet is EX.PW2/4 to Ex.PW2/8 lodged for the offence u/s 379/411/468/471/34 IPC, but it was theft of tempo against unknown person and later on accused was arrested u/s 411 IPC but has been convicted only u/s 468/471 IPC. Further, FIR No. 35/09 which is Ex.PW3/1of which charge sheet is Ex.PW3/3 to Ex. PW3/38 in which charges u/s 120B/395 r/w 120B and 365 r/w 120B IPC have FIR No. 234/10 State Vs. Nadeem @ Kallu 38 of 501 been framed vide orders Ex.PW3/20 to Ex.PW3/23 but accused was again arrested on the basis of disclosure statement and that too u/s 41.1(d) Cr.P.C. when he was in custody in FIR No- 530/05 but nothing was recovered from his possession or at his instance.
13.1. FIR No. 171/10 which is Ex.PW4/14 of which charge sheet is Ex.PW4/1 to Ex.PW4/18, but again nothing was recovered in this case from accused Nadeem. FIR No-22/05 which is ExPW5/1 of which charge sheet is Ex.PW5/2 to Ex.PW5/5 was u/s 457/380/411/34 IPC. It was against unknown person and no recovery was affected at the instance of accused and accused was formally arrested in this case. FIR No.11/05 which is Ex.PW6/1 of which charge-sheet is Ex.PW6/2 to Ex. PW6/7 was again lodged against unknown persons and nothing was recovered from or at the instance of accused and he was arrested on the disclosure statement of co-accused.
13.2. FIR No. 103/10 which is Ex.PW7/1 of which charge-sheet is Ex.PW7/2 to Ex.PW7/9. A loaded pistol was recovered from the accused along with stolen property i.e. 120 Aluminum plates and charge u/s 412 IPC has been framed against accused for which is his facing trial. FIR No. 530/05 which is Ex.PW9/1 to Ex.PW9/7 of which charge sheet is Ex.PW9/8 to Ex.PW9/16 was under section 395/397/120B and 412 IPC, but again accused was arrested on the disclosure statement of co-accused when he was in judicial custody FIR No. 234/10 State Vs. Nadeem @ Kallu 39 of 501 in another case. FIR No. 20/07 which is Ex.PW10/1 of which charge sheet is Ex.PW10/2, but accused Nadeem was arrested and plead guilty u/s 471/34 IPC in pre lok adalat sitting ,but stolen tempo was recovered in FIR No 81/07 of PS Bawana and not from the custody of accused herein. FIR No. 448/06 was lodged u/s 380 IPC against theft of Rs. 60,000-70,000/-, but against unknown person and accused Nadeem was not arrested in this case being absconding.
13.3. FIR No. 45/07 which is Ex.PW15/C to Ex.PW15/C2 and Ex.PW18/3 was also lodged u/s 380 IPC of which certified copy is Ex.PW15/D against the loss of Rs. 50,000/-. Again arrest was on disclosure statement and accused was in JC at the time of his arrest, but accused was discharged in this case as well as FIR No. 11/05. FIR No. 530/05 was u/s 365/379/34 IPC of which FIR and chargesheet are Ex.PW9/1 to Ex.PW9/24, but vehicle was found abandoned and no recovery was made from accused. FIR No. 14/10 which is Ex.PW17/A and Ex. PW17/B was lodged u/s 382/34 IPC against theft of one tempo but vehicle was recovered from Ghaziabad, U.P and nothing was recovered from or at the instance of accused Nadeem. FIR No. 20/07 which is Ex.PW10/1 of which chargesheet is Ex.PW10/2 to Ex. PW10/4, theft of tempo was made from unknown person and even nothing was recovered at the instance of accused as per Ex. PW10/DA and Ex.PW10/DB.
13.4. FIR No. 112/06 of which FIR is Ex.PW23/A and charge-sheet FIR No. 234/10 State Vs. Nadeem @ Kallu 40 of 501 is Ex.PW23/C and charges and ordersheets are Ex. PW23/D and Ex. PW23/E. FIR was lodged u/s 399/402/186/353/307/34 IPC and 25 of Arms Act, but again it is admitted by PW23 that complainant had not disclosed who was intended to be robbed by accused. FIR No. 04/2010 was u/s 392/397/34 IPC of which FIR and charge sheets are Ex.PW25/A to Ex.PW25/D. Accused Nadeem was arrested u/s 41.1.(d) Cr. PC. Accused was involved on the basis of disclosure statement of co-accused and recovery was made from accused Nadeem and has been facing trial u/s 412 IPC. FIR No. 117/05 which is Ex.PW27/A and charge-sheet is Ex.PW27/B1 to Ex. PW27/B7 and charges Ex.PW27/C1 to Ex. PW27/C6 was again for preparation to commit decoity but no valuable article or cash was recovered at the instance of accused. Accused was arrested on secret information and knife was recovered. FIR No. 24/05 which is Ex.C2 was against preparation of decoity and also recovery of fire arm. As such, after going through the case details proved by the prosecution, it is revealed that none of FIR has indicated that accused was involved in organized crime syndicate or as members.
14. PW13 has proved a document Ex.PW13/5 as per which accused has been convicted in three cases and discharged in 10 cases, but he is facing trial in 17 cases. Ex.PW13/6 and Ex.PW13/7 are the documents which have proved the gang of the accused as per which Radhey Shyam, Pawan, Rakesh, Sanjay, Bashir, Md. Zaki, Om Prakesh Balbir, Praveen were the main members of the gang of FIR No. 234/10 State Vs. Nadeem @ Kallu 41 of 501 the accused Nadeem, but there must be evidence to show a nexus of prime accused with knowledge of organized crime. In fact, the nexus between the crime and accused in the capacity of member of organized crime syndicate or kingpin must be established with knowledge of organized crime activities. As such, prosecution was duty bound to prove with the specific evidence that the accused formed an organized gang and indulged into criminal activities as a member or organizer of the gang with the specific knowledge that he was indulged in that capacity. However, in the present case, there is no evidence on record as to when accused formed any organized gang/ syndicate or joined any such syndicate in the capacity of a member and carried out his activities individually or jointly.
15. In fact, there must be some evidence to prove as to when the organized crime syndicate was formed or joined by the accused but there is no such evidence on record to prove this origin of the syndicate and nexus between organized crime syndicate and criminal activities of the accused along with that syndicate and merely past involvement of the accused is not sufficient to prove the nexus between the accused and organized crime as held in Mahipal Singh v. CBI, (2014) 11 SCC 282. As such, the evidence of PW1 to PW27 have just proved the past involvement of the accused in the crime without any evidence that the accused Nadeem was kingpin of the organized crime syndicate or was acting as a member of that syndicate or was indulged in such activities for pecuniary gain. IO FIR No. 234/10 State Vs. Nadeem @ Kallu 42 of 501 has already admitted during his examination that he did not collect any evidence regarding bank balance or immovable properties in the name of accused or family members to prove that accused made any pecuniary gain by his illegal activities which were the basic requirements of section 2(d), 2(e) and 2(f) of MCOCA and the same could not be proved by the prosecution against the accused to make him guilty u/s 3(4) of MCOCA for which he has been charged.
16. PW28 has admitted that he mooted the proposal of invocation of MCOCA as per record of the Police Station against the accused as he was involved in activities of theft and robberies and four cases were registered with his PS. He took over the charge of PS on 31.07.2009 and moved proposal on 29.03.2010. He moved proposal just on the basis of previous involvement of accused in cases without ascertaining as to whether those cases were actually in the capacity of organized crime syndicate or as members. Even no evidence was collected against the accused that the crime was committed for pecuniary gain thereby using violence, threat of violence or coercion. PW30 has admitted during cross-examination that he has not come across during entire investigation that accused earned any pecuniary benefits or undue economic gain from his criminal activities.
17. Accused was not maintaining any bank account and even house in which he had been residing belonging to his mother who was also earning by doing household work and father of accused FIR No. 234/10 State Vs. Nadeem @ Kallu 43 of 501 was maintaining a bank account but was working as rickshaw puller. PW22 has proved that during period between 10.03.2007 to 03.06.2013, wife of accused namely Nazma had a bank balance of Rs. 57,813/- and admittedly no amount bigger than Rs. 57,813/- was ever deposited in the account of Nazma and it was maximum amount. The mother of the accused Nadeem only had Rs. 1744/- in her bank account. This account details given by PW22 vide documents Ex.PW22/A and Ex.PW22/G have proved that no big amount was ever transacted in the bank accounts of accused or family members to prove that accused earned anything from unlawful sources. If accused did not earn anything ranging from bank deposits to movable and immovable properly, then it cannot be said that he had been earning by illegal sources. The prosecution has alleged that accused accumulated property worth more than of Rs. One Crore and even approximately properties worth of Rs. 50 Lacs were ascertained during investigation as disclosed in charge sheet, but nothing such could be proved on record by the prosecution with the testimonies of PW1 to PW27.
18. Prosecution has not proved any document pertaining to the recovery from the accused as alleged in chargesheets and PWs have only produced the record of those cases lodged against accused. Recovery memos of those cases have not been proved to prove that any recovery was made from the accused. In the absence of proving any material document on record, it could not be proved FIR No. 234/10 State Vs. Nadeem @ Kallu 44 of 501 that accused gained something from use of violence, threat of violence, intimidation or coercion or by unlawful means. As such, the criteria of Section 2 (e) of MCOCA are not satisfied in this case. Similarly, unlawful continuing activities of accused also could not prove that he formed an organized crime syndicate in terms of Section 2 (f) of MCOCA or carried out his activities in that capacity.
19. The Hon'ble Supreme Court of India has considered the object and reason of enactment of MCOCA in Ranjitsingh Brahamjeetsing Sharma Vs. State of Maharastra & Anr. that it is necessary ingredient for commission of crime under MCOCA that the continuing unlawful activity must be towards the continuing unlawful activities pertaining to organized crime or as a member of organized crime as defined under Section 2 (e) and (f) of MCOCA and merely filing of previous chargesheets is not a ground to invoke MCOCA. As such, requirement of Section 2 (d), (e) and (f) of MCOCA are not satisfied in this case against the accused.
20. One another material ingredient of invoking MCOCA is section 23 which a double shied for the prosecution of the accused. Section 23 is reproduced herein as under:
Section 23. Cognizance of, and investigation into, an offence.-
(1) Notwithstanding anything contained in the Code.-
(a) no information about the commission of an offence of FIR No. 234/10 State Vs. Nadeem @ Kallu 45 of 501 organized crime under this Act, shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police;
(b) no investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rank of the Deputy Inspector General of Police.
(2) No Special Court shall take cognizance of any offence under this Act without previous sanction of the police officer not below the rank of Additional Director General of Police.
21. Perusal of section 23 of MCOCA has shown that it has provided double protection to the accused before prosecution of the accused under this stringent Act, firstly, at the time of investigation of any matter pertaining to this Act thereby moving proposal and, secondly, at the time of filing of the charge sheet against the accused. A valid sanction is sine qua non for enabling prosecuting agency to approach court in order to enable court to take cognizance of the offence under MCOCA. Initially, PW29 accorded the sanction on 24.04.2010 on the basis of documents Ex.PW28/A1 to Ex.PW28/A11 vide documents Ex. PW29/A1 to Ex.PW29/3. The initial prosecution was on the basis of proposal made by Inspector Ishwar Singh. As per the order Ex. PW29/A1, it is revealed that accused Nadeem was kingpin of his syndicate and committed various robberies alongwith his associates. PW29 satisfied himself FIR No. 234/10 State Vs. Nadeem @ Kallu 46 of 501 from the criminal activities of accused pertaining to an organized crime syndicate as defined in 2 of MCOCA being run by accused and thereafter sanction was accorded. Thereafter, another sanction Ex. PW29/B was accorded on the basis of chargesheet submitted by ACP/IO. From this sanction order, it is revealed that PW29 only satisfied himself regarding the compliance of section 2 (d) of MCOCA that various cases were pending against accused. PW29 has admitted during cross-examination that he did not ask the IO about the pecuniary gain of accused from criminal activities or accumulation of wealth from unknown sources. As such, it was material lapse in compliance of mandatory requirements of MCOCA.
22. PW29 has admitted that he has accorded sanction in 10 cases of MCOCA and has not denied sanction in any of cases which suggests that he accorded the sanction of prosecution of accused in mechanical and routine manner without satisfying himself about prosecution of accused for organized crime syndicate or gang or continuing unlawful activities of organized crime syndicate for pecuniary again. Even nothing such has been mentioned in the sanction order of PW29 that he perused or tried to satisfy himself regarding organized crime activities of accused. PW29 has admitted that he considered the previous cases against the accused, but no document of property of accused, either movable or immovable, was sent for approval at the time of sanction and even he did not try to ascertain the recoveries or truthfulness of the cases mentioned in FIR No. 234/10 State Vs. Nadeem @ Kallu 47 of 501 the approval. It is further deposed that he had gone through the charge sheets and other documents collected by IO during investigation before granting the sanction. Accused has been accorded sanction under Section 3 (2) & (4) of MCOCA, whereas it was the requirement of Section 3 (2) of MCOCA that accused must have conspired or attempted to commit or advocated, abetted or knowingly facilitated the commission of an organized crime or any act preparatory to organized crime, but nothing such has been revealed from the proposal or sanction order. Similarly, no evidence has been collected by prosecution except previous involvement of accused that he acted as a member of organized crime syndicate and for any pecuniary gain in terms of section 3(4) of MCOCA.
23. After going through the sanction orders and the testimony of the PW29, it stands proved that he just considered the previous involvement of the accrued in various cases as disclosed in the approval as well as charge sheet. He was not aware about the basic requirements of granting approval as well as sanction before charge sheet. In view of my discussion herein above, it is clear that there was no evidence against the accused for granting sanction for prosecution of this case. He did not consider any evidence pertaining to organized crime syndicate or involvement of the accused in the crime in this capacity. As such, he did not see any evidence regarding nexus of the crime between accused and organized crime. Sanction order Ex.PW29/B has revealed that only criminal record of FIR No. 234/10 State Vs. Nadeem @ Kallu 48 of 501 the accused in the last preceding 10 years has been considered without any consideration of any evidence against the accused regarding formation of organized crime syndicate or any criminal activity of accused regarding involvement on behalf of the organized crime syndicate. Since the PW29 was himself not aware about the basic requirements of the MCOCA as admitted during cross examination, then sanction granted by him may not be considered valid. Continuing unlawful activity is not punishable separately and it is one of the conditions of invoking MCOCA which was only considered thereby ignoring the other conditions and the section granted by PW29 amounts to non application of mind.
24. It has been held in State of Maharashtra v. Jagan 2011(5) Mh.L.J. that it is implicit that while granting permission under sub- section (1) and granting sanction under section (2) of section 23 of MCOCA, the police officers, who are undisputedly high ranking, will be required to apply their mind to the facts of the case and come to a prima facie satisfaction as to whether the ingredients to constitute the offence punishable under MCOCA are made out or not. As such, PW29 did not consider the basic conditions to invoke MCOCA and there was no material as per charge sheet in the absence of any evidence of formation of syndicate and activities of accused as a part of syndicate and sanction u/s 23(2) of MCOCA was not warranted to be granted and it was a mechanical order.
FIR No. 234/10 State Vs. Nadeem @ Kallu 49 of 501
25. After going through the entire material available on record, I am of the considered opinion that admissions of PW28 and PW30 have duly proved that accused was involved in a number of cases, but all those cases were not in the capacity of an an organized crime syndicate in terms of Section 2 (f) of MCOCA and, even prosecution has failed to prove that accused was singly or jointly acting as a number of crime syndicate and indulged in organized crime activities for pecuniary gain. In the absence of any such evidence on record qua section 2 (e) and (f) of MCOCA, I am of the considered opinion that PW29 accorded the sanction of trial without satisfactory grounds and no offence u/s 3 (4) of MCOCA is made out against accused for which he has been charged.
26. Keeping in view of the fact and circumstances of the case, I am of considered opinion that prosecution has failed to prove this case against accused. I hereby acquit accused of all charges framed against him. File is consigned to record room.
Announced in open court (Devender Kumar)
today on 06.08.2016 Additional Sessions Judge-03
(NE): Karkardooma Courts, Delhi.
FIR No. 234/10 State Vs. Nadeem @ Kallu 50 of 501