Bombay High Court
Rajendra @ Raju Dharamsi Dave @ Topi vs The Deputy Supritendend Of Police And ... on 11 August, 2021
Author: Prakash D. Naik
Bench: Prakash D. Naik
rpa 1/11 3 ba 3582 2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.3582 OF 2019
Rajendra @ Raju Dharamsi Dave @ Topi .. Applicant
Versus
The Deputy Superintendent of Police
And Anr. .. Respondents
......
Mr.Gaurav Lele i/b. Ms.Sudha Dwivedi, Advocate for the
Applicant.
Mr.S.R. Agarkar, APP for the Respondent - State.
......
CORAM : PRAKASH D. NAIK, J.
DATED : AUGUST 11, 2021.
P.C. :
The applicant is seeking bail in connection with
C.R.No.136 of 2019, registered with Rajarampuri Police Station,
Kohlapur, for the ofences punishable under Sections 143, 147,
149, 395, 307, 353, 332, 155, 109, 324, 323 and 427 of Indian
Penal Code ("IPC", for short) and Sections 4 and 5 of Prevention
Digitally
signed by
RAJESHRI of Gambling Act.
RAJESHRI PRAKASH
PRAKASH AHER
AHER Date:
2021.08.12
13:37:45
+0530
2 The applicant was arrested on 5th August, 2019. Prior
approval was obtained under Section 23(1)(A) on 10 th April, 2019,
rpa 2/11 3 ba 3582 2019.doc
for invoking the provisions of the MCOC Act. Sanction for
prosecution under the provisions of MCOC Act was granted on 4 th
October, 2019. Provisions of sections 3(1)(2), 3(2), 3(4) and 3(5)
of MCOC Act were applied. On completing investigation, charge -
sheet was fled.
3 The case of the prosecution is that on 8th April, 2019,
raid was conducted at Matka Den of accused no.26 Salim Yasim
Mulla. While police were recording panchanama, accused no.1
(wife of accused no.26) instigated other accused who attacked the
police and attempted to commit murder, prevented the police
from performing their duty, and, tried to snatch the cash from the
police which was seized from the house of accused Nos.1 and 26.
About 29 accused were arrested. Accused no.26 and others were
members of organized crime syndicate indulging in continuous
unlawful activity. The kingpin of the gang was accused no.26,
Salim Yasim Mulla. Various cases were registered against him
such as dacoity, extortion, unlawful business of betting, attempt
to commit murder etc. During the course of investigation, it was
revealed that accused no.26 Salim Yasim Mulla used to sent
money received from illegal Matka business and acquired huge
property out of the proceeds received from the illegal Matka
rpa 3/11 3 ba 3582 2019.doc
business. Accused no.30 Rakesh Agarwal, 31 Zakir Abdul
Mirajkar, 32 Ankush Maruti Vagre, 33 Sarad Devasrao Korane, 36
Jayesh Shevantilal Shah, 37 Shailesh Gunvantirai Maniyar, 38,
Viral Prakash Sawla, 39 Jitendra Kantilal Gosalia, 40 Jayesh
Sawla, 41 Rajendra Dave, 42 Manish Kishor Agarwal, 43 Samrat
Subhash Korane and 44 Prakash Sawla facilitated the other
accused particularly accused no.26 Salim Mulla for committing
the organise crime. They were members of organised crime
syndicate headed by accused no.26 Salim Mulla. During personal
search of the applicant, mobile hand set of the applicant was
seized under arrest panchanama. On completing investigation,
charge-sheet was fled.
4 The applicant preferred an application for bail before
the Special Court under the MCOC Act. The said application was
rejected vide order dated 5th December, 2019.
5 Some of the accused had challenged the proceedings
by preferring Writ Petition before the Division Bench of this
Court. The challenge in the said petition was to the prosecution of
the said petitioners under the penal provisions of IPC and the
MCOC Act. The contention of the petitioners therein was that the
rpa 4/11 3 ba 3582 2019.doc
provisions of MCOC Act are not applicable. The said accused
were not present at the time of incident and they do no have any
connection with accused no.26 or the alleged crime syndicate.
The Division Bench vide order dated 21 st April, 2020, dismissed
the said petition. Being aggrieved by the said order, the
petitioners therein had approached the Apex Court and the
Special Leave Petition in this regard is pending before the Apex
Court.
6 Initially this application was adjourned awaiting the
decision of the Hon'ble Supreme Court. Learned counsel for the
applicant,however, submitted that the said petitions are pending
for a long time and the applicant is in custody for substantial
period of time. The applicant would pursue his application for
bail.
7 Learned counsel for the applicant submitted that the
applicant has not been named in the FIR. He was not present at
the place of incident at the time of the alleged raid. He is not
involved in commission of ofences registered vide C.N.No.136 of
2019. He has not participated in the incident of attacking police
or obstructing them in performing their duties. He has not
rpa 5/11 3 ba 3582 2019.doc
participated in the assault. There are no criminal antecedents
against the applicant. He is not part of the organised crime
syndicate headed by accused no.26. No other case is registered
against the applicant. He is not involved in any crime with
accused no.26. The applicant has not been named in the approval
obtained under Section 23(1)(A) of the MCOC Act. The
confessional statement of applicant is not suficient to invoke
provisions of MCOC Act. It has been retracted. It is also
submitted that the applicant is 66 years old person. Further
investigation is conducted without permission of the Court. The
applicant is in custody for a period of about two years. He relied
upon the decision of the Supreme Court in the case of
Ranjitsingh Sharma Vs. State of Maharashtra and Anr. 1;
decision dated 5th August, 2011, delivered by the Full Bench of
this Court in Criminal Appeal No.20 of 2021 and other
connected matters (in the case of State of Maharashtra Vs.
Jagan Gagansingh Nepali @ Jagya and Anr.); the decision of
the Apex Court in the case of Vinubhai Haribhai Malaviya and
Ors. Vs. State of Gujarat and Anr.2; the decision in the case of
Vinay Tyagi Vs. Irshad Ali Alias Deepak and Ors. 3.
1 (2005) 5 SCC 294
2 (2019) 17 SCC 1
3 (2013) 5 SCC 762
rpa 6/11 3 ba 3582 2019.doc
8 Learned APP submitted that there is suficient
evidence invoking the provisions of MCOC Act against the
applicant. The co-accused had preferred Writ Petition before this
Court, challenging the applicability of the provisions of MCOC
Act, and, theoe petitions were dismissed and the Special Leave
Petition challenging the said decision is pending before the Apex
Court. Learned APP relied upon the observations of the Division
Bench of this Court in order dated 21st April, 2020, passed in Writ
Petition No.2899 of 2019 and other connected matters. He relied
upon observations in paragraph nos.14 and 17 of the said
decision. Learned APP drew my attention to various statements
recorded under Sections 161 and 164 of Cr.P.C., and, submitted
that specifc overtact has been attributed to the applicant which
shows that he is associated with crime syndicate headed by
accused no.26. Learned APP also strongly relied upon the
confessional statements of the applicant as well as other accused,
and submitted that the applicant was involved in assisting the
accused no.26 in purchasing various properties out of the amount
earned by the co-accused as crime proceed. At this stage, the
veracity of the confessional statements cannot be doubted.
Merely on the ground that applicant was not present at the place
of incident when the raid was conducted, he could not be
rpa 7/11 3 ba 3582 2019.doc
absolved from the ofence. It is submitted that the case is being
investigated on the footing that accused who were present at the
scene of ofence and the other accused were acting as crime
syndicate headed by accused no.26 by engaging in unlawful
activities for pecuniary advantage. There is suficient evidence to
show the complicity of the applicant in the crime. The mobile
handset of the applicant was seized on his personal search. The
WhatsApp note forwarded to co-accused Viral Sawla indicate that
screen shot of the calculation refers to word R.D. indicating the
involvement of the applicant. Viral Sawla had explained the words
R.D. as Rajendra Dave. The memorandum statements of the said
accused were recorded under Section 27 of Evidence Act,
wherein, he has explained the term R.D. and the notes forwarded
on the WhatsApp. Confessional statement of 15 accused were
recorded under Section 18 of MCOC Act. In the confessional
statement of Jayesh Sawla, it is stated that the applicant is
assisting Sawla family in their illegal business and distributing
protection money to the gangsters. The confessional statements
also indicate that the applicant accused had acted as a broker in
purchasing properties. The confessional statement of Jayesh
Sawla makes reference to the involvement of the applicant.
Learned APP also drew my attention to the statements of various
rpa 8/11 3 ba 3582 2019.doc
other persons recorded under Section 164 of Cr.P.C. and
contended that there is voluminous evidence showing connection
of the applicant with the co-accused. It is submitted that further
investigation was being conducted by following the procedure of
law. Prosecution has fled afidavit-in-reply opposing the
application for bail.
9 I have perused the documents. Prima facie, there is
suficient evidence to show the complicity of the applicant in the
ofences. The statements of witnesses recorded during
investigation and the confessional statement of the accused,
cannot be discarded at this stage. The material on record shows
association of the applicant with the crime syndicate. During his
personal search, mobile handset of the applicant was seized.
During the course of investigation, mobile phone of accused no.38
Viral Prakash Sawla was seized and in his WhatsApp it is found
that there were business calculations of Viral Prakash Sawla
referred to had saved the name as R.D. After making further
inquiry with Viral Prakash Sawla, it is revealed that R.D. is the
name of the applicant. The screen shots of some chit from the cell
phone contain the word R.D. and coded business account which
was seized under Section 27 of the Evidence Act. The case of the
rpa 9/11 3 ba 3582 2019.doc
prosecution is that there is confession of the applicant recorded
under Section 18 of the MCOC Act wherein he has specifcally
stated the manner in which he is associated with the accused
Prakash Sawla and Jayesh Sawla. He is aware about the illegal
betting business of absconding accused Prakash Sawla, Jayesh
Sawla and Viral Sawla. He has helped Prakash Sawla in
purchasing huge property in Mumbai and the said properties has
been purchased out of the amount received from illegal betting
business. During the course of investigation, confessional
statement of 15 accused were recorded under Section 18 of the
MCOC Act. Statement of accused no.40 reveals that the
applicant is helping Sawla family in carrying out illegal betting
business and purchasing properties out of it and he is involved in
distributing protection money to Gangsters on behalf of Sawla
family. Statements of Kumar Keni, Deep Gangar, Ashok Pawar,
Sanjay Desai, Kishor Gangar, Sanjay Chhabria and Himanshu
Shah were recorded wherein they have stated that the present
applicant used to meet Prakash Sawla and he was being handed
over the money to distribute the same amongst gangsters. The
investigation indicate that the statement of some of witnesses
were recorded under Section 164 of Cr.P.C. Their statements
supports the prosecution case. Confession of Co-accused Jayesh
rpa 10/11 3 ba 3582 2019.doc
Shah, Viral Sawla, Jitendra Gosalia, Manish Agarwal and Shailesh
Maniyar and the applicant reveals the details about the illegal
betting business conducted by the accused. The material
collected by the prosecution shows the link of the gang leader
with the accused through the other co-accused. The charge-sheet
is has suficient material to show that the present accused is an
active member of the organised crime syndicate headed by
accused no.26, who has been indulging in continuing unlawful
activities. The role of the applicant in providing protection money
to gangsters and in purchasing various properties through proft
obtained from organised crime syndicate was revealed after the
approval order was passed, and, hence, his name was not
included was refected in the approval order, which was found in
the sanction order under Section 23(2) of the MCOC Act. The
decision relied upon by the learned counsel for the applicant
were delivered in the facts of theoe cases and the same cannot be
applying to the present case. The Division Bench in the decision
dated 21st April, 2020, which is under challenge before the Apex
Court had observed in paragraph 14 that though the gambling by
itself may not be an organised crime, however, an organize crime
syndicate may take recourse to it as one of its proft making
ventures. It may on some proft or beneft out of it to support the
rpa 11/11 3 ba 3582 2019.doc
other accused. It may indulging in contract killing, abduction,
dacoity or other similar ofences along with gambling business. If
the existence of the crime syndicate comes to the knowledge of
the State, for the frst time while conducing the raid on gambling
establishment and the investigation shows previous two more
charge-sheets for cognizable ofences punishable with
punishment of three or four years, the police may take recourse
to the MCOC Act and complete the investigation.
10 Prima facie there is material to show the complicity of
the applicant. There is suficient evidence indicating the
involvement of the applicant in the ofence under the provisions
of MCOC Act. In the light of restrictions embodied under Section
21(4) of MCOC Act, no case for grant of bail is made out and the
application deserves to be rejected.
:: O R D E R ::
(i) Bail Application No.3582 of 2019, is rejected and disposed of accordingly.
(PRAKASH D. NAIK, J.)