Bombay High Court
Sajid Gulabali Shaikh vs The State Of Maharashtra on 18 December, 2018
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.1889 OF 2018
Riyaz Ahmed Rasool Shaikh .. Applicant
Vs.
State of Maharashtra .. Respondent
WITH
CRIMINAL BAIL APPLICATION NO.1890 OF 2018
Sajid Gulabali Shaikh .. Applicant
Vs.
State of Maharashtra .. Respondent
......
Mr.Anil G. Lalla a/w. Breeta Bajwa, Ms.Anchal Lalla i/b. M/s.Lalla
And Lalla, Advocate for the Applicant.
Mr.R.M. Pethe, APP for the Respondent - State.
......
CORAM : PRAKASH D. NAIK, J.
DATED : DECEMBER 18, 2018.
P.C. :
These are the applications for bail in connection with
C.R. No.No.II-16 of 2017, registered with Manikpur Police
Station, District-Palghar, for the offences punishable under
Sections 25(a)(g)(k), 27(a) and 29 of Narcotic Drug and
Psychotropic Substances Act ("NDPS Act", for short)
subsequently provisions of MCOC Act were invoked.
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2 The brief facts of the prosecution case are as follows:
On the basis of specific information, on 24 th
September, 2017, Manikpur Police Station, District-Palghar
intercepted an Audi car and apprehended three persons, who
gave their names as Sarfaraz Memon, Sohail Memon and
Uchenna Stephen (accused nos.1 to 3). Search of the vehicle
resulted in recovery of 21.700 kilograms of Ephedrine, which is a
controlled substance. On 3rd October,2017, accused Sohail
Memon made a disclosure statement and at his instance police
proceeded to a farm house at Dapchari Prkalp, Plot No.124,
Talasri, Taluka Dahanu and recovered incriminating articles,
which hare in occupation of accused Faiyaz Ahmed Rasool
Shaikh. Applicant Riyaz Shaikh (accused no.4) was arrested on
12th October, 2017. On the basis of the alleged statement of co-
accused, he was produced before the concerned Court for
remand. Subsequently, the provisions of MCOC Act were invoked
and thereafter he was produced before the Special Court for
MCOC. Co-accused Sabid Shaikh was arrested on 22 nd January,
2018. Prior approval was sought by the investigating agency,
which was granted vide order dated 22 nd November, 2017.
Subsequently, sanction order is also issued on 22nd February,
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2018. On completing investigation, charge-sheet has been filed.
3 Learned advocate for the applicant submitted that the
provisions of MCOC Act are not applicable in this case and the
same are misused. It is submitted that the respondents have
failed to appreciate the object and scope of MCOC Act, and
granted approval and sanction invoking said provision. There is
no recovery at the instances of the applicant. There are no
antecedents against the applicant. The applicant has been
implicated in this case on the basis of the statement of the co-
accused, which is not admissible in the present case, being
statement recorded by police during the course of investigation.
There is no element of crime syndicate and organized crime. The
requisite ingredients to invoke provisions of MCOC Act are totally
absent in the case, as there is no organized crime, organized
crime syndicate or continuing unlawful activities. It is further
submitted that in the absence of any any evidence to show the
involvement of the applicant in the crime, he cannot be subjected
to detention by invoking the provisions of the MCOC Act.
Assuming that the provisions are applicable, there is no iota of
evidence against the applicant to show his complicity in the
crime. Only on the basis of the statement of the co-accused,
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applicant cannot be incarcerated in custody. One of the pre
condition to invoke the MCOC At is that there are more than one
charge-sheet filed in the preceding ten years where punishment
is for three years when the Court having taken cognizance of
these offences. Therefore, unless and until these pre conditions
are satisfied MCOC cannot be invoked. It is submitted that the
prosecution has relied upon the registration of the offences
against the co-accused. The applicant is not involved in any case
registered against the co-accused. The continuing unlawful
activities should be disclosed from the record, which is lacking in
the present case. The last case registered against the co-accused
Faiyaz Shaikh, who is purportedly the gang leader of the
organized crime syndicate was of 2014 and the provisions were
invoked four years thereafter. Invoking the provisions of the Act
is completely unwarranted and unjustified. The approval order
and sanction order are defective. It is further submitted that on
3rd October, 2017, Ephedrine was not prohibited under the NDPS
Act and was notified as Narcotic Substance under the provisions
of the said Act vide notification dated 26 th April, 2018, issued by
the Ministry of financce. The applicant was never apprehended by
the police or any other investigating agency for contravention of
the provisions of the NDPS Act. The applicant was never found in
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possession of any narcotic drug. He is arrested only on the
statement of the co-accused. The provisions of the MCOC Act
were brought into force to curb the menace of illegal operation of
organized crime syndicate, which could not be curtailed under
the normal procedure of law. The organized crime syndicate was
at that time were believed to be a threat to a civilized society and
for this purpose the said act was enacted. The applicants in both
these applications are not members of the organized crime
syndicate, and, they have not indulged in any activities of
violence, extortion, threat to members of public etc. therefore,
invoking the stringent provisions of MCOC Act is unusual and
probably the first case wherein the investigating agency has
resorted to the provisions of MCOC Act. It is further submitted
that Ephedrine is a controlled substance and neither a narcotic
drug nor a psychotropic substance. It is a raw material used for
manufacturing talcum powder, perfumes, toiletries, medicines
ect. and also has some illegal uses too. In view of that the
Government has framed Rules to monitor possession, trade,
transport etc., of Ephedrine which attracts punishment under
Section 25A of NDPS Act. Considering the punishment and the
object of the said provisions, the MCOC Act ought not to have
been invoked against the applicant. The provisions of NDPS Act
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carries the embargo under Section 37 of NDPS Act, to prevent
the applicant from indulging such activities and based on the pre
condition of grant of bail, thus, it is not necessary to invoke the
provisions of MCCOC Act, which also contains restriction under
Section 21(4) of the said Act. Learned counsel relied upon the
decision of this Court in the case of Sherbahadur A. Khan Vs.
State of Maharashtra1. In the said decision, it was held that an
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. The organised
crime syndicate is a gang which indulges in organised crime. It is
further observed that this gang may consist of two or more
persons, either acting singly or collectively. Such a gang should
be found to indulge in continuing unlawful activity i.e. an activity
which is prohibited by law and is a cognizable offence punishable
with imprisonment for three years and more. An activity would be
termed as a continuing unlawful activity, if more than one charge-
sheet has been filed before the competent Court against the
members of the gang either individually or jointly within the
preceding ten years. However, it must be established that such an
offence or unlawful activity is undertaken by a person with the
1 2007(1) Bom.C.R.(Cri.)26
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objective of gaining pecuniary benefits or gaining undue
economic or other advantage for himself or any other person or
for promoting insurgency and such unlawful activity could
include the use of violence or threat of violence or intimidation or
coercion. merely stating that a gang leader and his associates run
a crime syndicate with a view to gain pecuniary benefits and
advantages and supremacy over rival gangs by violence,
intimation and other coercive means, is not sufficient to maintain
a prosecution under the MCOC Act. It is submitted that while
while applying the principles enunciated in the aforesaid
decisions, the provisions of MCOC Act ought not to have been
applied in the present case.
4 Learned APP opposed the application for bail. It is
submitted that the provisions of MCOC Act are attracted in this
case. Several cases are registered against gang leader Faiyaz
Shaikh. Contraband was recovered from co-accused. The
statements recorded during the investigation show the complicity
of the applicant in the crime. Large quantity of the contraband
were recovered from the co-accused. There are criminal
antecedents against the leader of the gang. There are restrictions
in grant of bail on account of invocation of provisions of MCOC
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Act. In the light of Section 21(4) of the MCOC Act. The
submissions advanced by the learned counsel for the applicant
with regards to the applicability of the provisions of the MCOC
Act can be dealt with at the time of trial and not while
entertaining the application for bail. The investigating officer has
filed affidavit opposing the application for bail. The applicant is
not entitled for bail.
5 The applicants are impleaded as accused nos.4
and 6. The prosecution case proceeds on the basis that on 24 th
September, 2017, information was received from anonymous
source that one Sarfaraj and one Sohail residents of Vasaigaon
are planning to sell contraband Ephedrine to one person at
Saibaba Mandir at Vasai. Trap was laid. One vehicle was
intercepted. Two persons, namely, Sarfaraz Memon and Sohial
Memon were sitting in the car. Another person namely Uchenna
Stephen arrived at the car with bag also sat in the car. Search
was conducted. There was recovery of white colour powder from
the bag, lying in the car. It was Ephedrine weighing about 21.700
grams., valued Rs.21,70,000/-. FIR was registered and
investigation has commenced. During the course of investigation
three persons were arrested. They were produced before the
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Court for remand. During the police custody remand on 12th
October, 2017, accused Sohail Memon took the police to
Dapchari, Talasari, in a farmhouse. When the farm house was
searched, there was a recovery of white coloured powder and
white coloured granules. The white coloured powder were tested
positive for Heroin and the white granules substance tested
positive for Isosfrole/MDMA. The contrabands were seized. Three
accused, namely, Riyaz Ahmed Rasool shaikh, Fayaz Ahmed
Rasool Shaikh and Gulab Khan were impleaded as accused. Riyaz
Ahmed Rasool Shaikh (Accused no.4/Applicant) was arrested on
12th October, 2017 and Fayaz Ahmed Rasool Shaikh was arrested
on 22nd January, 2018, alongwith Sajid Shaikh. As per the
approval order dated 27th November, 2017, the provisions of
Sections 3(1)(ii), 3(2) and 3(4) of MCOC Act were added. Sanction
was also granted vide order dated 22nd February, 2018. During
the course of investigation, it is revealed that accused no.4 Riyaz
Ahmed Rasool Shaikh is the brother of Faiyaz Ahmed Rasool
Shaikh (accused no.5), who is allegedly the gang leader. Three
cases are registered against accused no.5 by Narcotic Control
Bureau, Hyderabad, Ahmedabad and Mumbai. Statements of
various witnesses were recorded. The affidavit filed by the
prosecution refers to four cases registered against Faiyaz Ahmed
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Rasool Shaikh. On completing investigating, as stated above,
charge-sheet is filed.
6 The prosecution case, as stated above, against the
present applicant in Bail Application No.1889 of 2018, is that he
is the brother of accused no.5. Admittedly, there is no recovery at
the instance of the said applicant and he is being impleaded on
the basis of the statement of co-accused, during the
interrogation. The investigation has been carried out police
authority and such a statement cannot be relied to convict the
accused in view of Section 25 of the Evidence Act. There is no
recovery from appliant in Bail Applicaiton No.1890 of 2018. The
statement of the accused or the co-accused is not admissible in
evidence. There is no other independent evidence to show the
involvement of the applicants. The entire case of the prosecution
is based on the statements recorded during the interrogation.
Apparently, before the applicant could apply for bail, the
provisions of MCOC Act were invoked in the present case. The
sanction order indicate that from the papers of investigation of
crime registered at distinct police station within the territorial
jurisdiction of District-Palghar, Mumbai, Gujarat, and Hyderabad,
it was revealed that the accused Sarfaraz and others are involved
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in the crime. Faiyaz Ahmed Shaikh is the leader of the gang. It is
also stated that the members of the organize crime syndicate
alleged to have been involved in the series of offences including
the present offence by use of threat or violence, intimidation,
coercion or other unlawful means for the sole object of gaining
illegal pecuniary benefit for alleged organize crime viz-a-viz the
crime. It is also stated that more than one charge-sheet has been
filed against Faiyaz Ahmed Rasool Shaikh, who appears to be the
leader of the alleged syndicate for an offence punishable with
imprisonment of three years before the competent Court which is
precede period of 10 years and concerned Court have taken
cognizance of the said offence. Learned counsel for the applicant,
however, pointed out that the finding of the sanctioning authority
is factually incorrect. It was also contended that on considering
the material collected during the investigation, there is no
semblance of threat violence, as reflected in the sanction order.
Learned counsel relied on the observations of this Court in the
decision referred to hereinabove wherein it was observed that the
mere fact that the accused are related to each other and have
committed offences would not lead to inference that the accused
formed an organised crime syndicate. In the present case, there
is no involvement of the applicants with the co-accused in any
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other case. It is submitted that three other cases are registered
against Faiyaz Shaikh. It is also submitted that the evidence does
not disclose that the brother of the applicant in Bail Application
No.1889 of2018 (accused no.5) is the gang leader. There is no
other case registered against the said applicant for contravention
of the provisions of NDPS Act, or any other provisions of law.
If the involvement of the applicants in both the applications in
crime, predicate offence pursuant to the recovery of the
contraband from the co-accused, itself is not made out, by
applying the provisions of MCOC Act, the applicants cannot be
subjected to incarceration. The recovery of contraband is from
the co-accused. It is true that at the stage while considering the
application for bail, it is not necessary to give a finding with
regards to the applicability of the provisions of law, however, to
consider grant of bail, it will have to be considered whether the
embargo stipulated under Section 21(4) of the MCOC Act, would
deprive the applicant-accused from granting bail. The law is well
settled in the decision of the Supreme Court in the case of
Ranjitsingh Brahmajeetsing Sharma2, wherein it is observed
that for considering the application of bail under Section 21(4) of
MCOC Act, prima facie case is required to be considered whether
2 (2005) Vol -5, SCC 294
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the accused is involved in the crime. It would be open to the
applicant to challenge the proceedings before the appropriate
Court with regards to the applicability of the provisions of the
MCOC Act. However, in the light of the principles enunciated in
the aforesaid decision, and considering the material collected
during the investigation and the observations made hereinabove,
there is no impediment in granting bail to the applicants, inspite
of the restrictions enunciated under Section 21(4) of the MCOC
Act. For the reasons stated above, case for grant of bail is made
out.
8 Hence, I pass the following order:
:: O R D E R ::
(i) Bail Application Nos.1889 and 1890 of 2018, are allowed;
(ii) Applicants are directed to be released on bail in connection with C.R. No.II-16 of 2017, registered with Manikpur Police Station, District-Palghar, on their furnishing P.R. Bond in the sum of Rs.25,000/-, each, with one or more sureties in the like amount; ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 20:56:08 :::
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(iii) Applicants are directed to attend the Manikpur Police Station, District-Palghar, once in a month on first Saturday of the month between 10:00 a.m. to 12:00 noon, till further orders;
(iv) Applicants shall not tamper with the evidence;
(v) Applicants are permitted to furnish cash security in the sum of Rs.25,000/-, each, in lieu of surety for a period of six weeks from today;
(vi) Bail Applications stand disposed of.
(PRAKASH D. NAIK, J.) ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 20:56:08 :::