Delhi District Court
(Relied On Prafulla vs State Of Maharastra) on 16 November, 2011
State v. Khalil Ahmed
IN THE COURT OF SH. PAWAN KUMAR JAIN,
ADDL. SESSIONS JUDGE-01(CENTRAL):DELHI
Session Case No. 57 of 2010
ID No: 02401R0277242009
FIR No. : 06/2009
Police Station : SPL. Cell
Under Section : 384/386/506/467 IPC & 3(2),
3(4) & 4 of MCOCA Act
STATE
Versus
KHALIL AHMAD
S/o Mohd. Subrati
R/o F-2, Road No. 5,
Andrew Ganj,
New Delhi.
...........Accused
ORDER:
1. By this order I shall dispose of the contentions raised by learned counsel appearing for accused that prima-facie no case is made out to frame a charge against the accused for the offence punishable under Maharastra Control of Organised Crime Act (hereinafter referred to MCOCA).
2. Briefly stated facts of prosecution case are that on SC Nos. 57 of 2010 Page no. 1 of 35 State v. Khalil Ahmed February 17, 2009 complainant Qmar Ahmed had made a written complaint to Joint C.P./Spl Cell, which was ultimately assigned to SI Satender Vashist. Complainant visited the office of Spl. Cell/NR at about 2.30 pm and got recorded his statement to SI Satender Vashist.
(i) It was alleged by the complainant that he has been running a trading company in the name of M/s A.S. Traders at Khari Baoli and on February 16, 2009, when he was present at his shop along with his business partner named Sanjeev Bhist, two persons came at his shop at about 2.30 p.m and one of them had handed over his mobile phone to him and forced him to talk with Khalil Ahmed a notorious criminal of the area. It was alleged that Khalil Ahmed had threatened him and demanded ` 10,00,000/- and also threatened in case of non-payment, he should be ready to face the music and in that eventuality he would eliminate him and his family. Khalil Ahmed asked him to come Darya Ganj immediately but when complainant expressed his inability to reach there immediately, Khalil Ahmed asked him to come to Tis Hazari on the next day at about 11.00 am. One of the persons also picked up the visiting card from his shop. It was alleged that while leaving the shop, both the persons threatened the complainant that in case extortion amount was not paid, complainant would have to face the consequences. It was alleged that he was so terrified that he did not report the matter to the police.
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State v. Khalil Ahmed
(ii) It was alleged that on February 17, 2009 when
complainant along with Sanjeev were getting the complaint prepared at Karkardooma Court, complainant had received a call on his mobile phone bearing no. 931063391 from a mobile phone bearing no. 9210459185, Khalil was caller and he rebuked him for not coming at Tis Hazari and again terrorized him. Complainant disconnected the phone. Though complainant had received 2-3 more calls from the said number yet complainant did not attend the same.
It was stated that at about 11.50 a.m, complainant had again received a call from the same number, but this time it was attended by Sanjeev posing himself as driver of complainant and when Sanjeev told that sahib (complainant) had gone inside the court, Khalil became infuriated and threatened him. It was stated that complainant continued to receive numerous calls from the above number and one more number i.e. 9871144610, but he did not attend the calls. It was alleged that at about 2.00 p.m Khalil along with 8-10 persons visited his shop and intimidated his servant Imran, who told the same to the complainant on phone.
(iii) On the statement of complainant, an FIR for the offence punishable under Sections 384/506 IPC was got registered. It was alleged that when after lodging the FIR, complainant reached his shop in the evening, Khalil came there and threatened the SC Nos. 57 of 2010 Page no. 3 of 35 State v. Khalil Ahmed complainant that complainant would have to face the music of lodging the FIR against him.
3. It was alleged that on February 26, 2009 accused Khalil Ahmed was apprehended from near India Habitat Centre, Lodhi Road, when he along with his associate came there on a bike. Though his associate had succeeded in escape, yet police succeeded in apprehending the accused Khalil. Two mobile phones bearing number 9210459185 and 9871144610 were recovered from the accused. It was alleged that said phones were used in threatening the complainant. One Lancer Car bearing no. DL-3C-S-1209 was also recovered at the instance of accused. It was alleged that original papers of several properties and other incriminating documents were recovered from the said car. During the search of house of accused located at F-2 Andrew Ganj, New Delhi, 12 cheque books, one pass book and photostat papers of many properties were recovered.
4. It was alleged that during interrogation accused had confessed his guilt of extortion of ` 10,00,000/- from the complainant but accused did not reveal the name of his associates who visited the shop of complainant and threatened him. During investigation it was revealed that accused was a notorious extortionist of the area and was found involved in 34 cases of extortion, dacoity, kidnapping, assault, intimidation, murder, attempt SC Nos. 57 of 2010 Page no. 4 of 35 State v. Khalil Ahmed to murder etc. It was alleged that accused was running an organized crime syndicate with the help of his associates to terrorize the businessmen and shopkeepers of walled city area and used to extort money from them. No one was coming to give the complaint against Khalil Ahmed and his syndicate.
5. Considering the above revelation, on March 23, 2009 after taking the prior approval of Joint Commissioner of Police, Special Cell, Delhi, provisions of MCOCA were invoked against the accused. During investigation, it was surfaced that accused had many bank accounts, debit and credit cards of various banks and he had acquired number of properties in his name in a few years, despite the fact that he had no source of regular income.
6. During search, photostat documents of 19 properties were recovered from his house, out of these, six properties were found disputed. It was alleged that accused had tried to terrorize one party at the behest of another one with some consideration, sometimes directly and some times behind the scene. Papers of six disputed properties have been placed on judicial file whereas the documents pertaining to other 13 properties have not been placed on judicial file. Original documents of some properties were also recovered from the house of accused.
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State v. Khalil Ahmed
(i) It was alleged that accused had got transferred property
bearing no. 503/22 Zakir Nagar, New Delhi by preparing forged documents as the stamp of vendor of non-judicial paper and stamp of notary on the transfer documents were found fake. It was alleged the owner of property Rehena Begum is still untraced. Accordingly, Sections 467/468/471 IPC were added in the challan.
(ii) It was alleged that property bearing no. 113A Khasra No. 159 village Adhchini was sold by one Riazuddin to Asfaq and documents of said transaction were got prepared by accused and the stamp of notary on the said documents is found fake. It was alleged that part of the said property was forcibly occupied by accused and from which accused is running his office of Tour and Travels in the name of M/s Creative International. It was alleged that Asfaq had not received the document from accused despite making the payment for the property. It was alleged that in one case, Asfaq was forced to give a receipt of ` 12.50 lac in the name of accused despite the fact that no payment was made to Asfaq.
(iii) It was alleged that accused had purchased an industrial plot bearing no. S-18 Handloom Complex Industrial Estate,Loni Ghaziabad from UP Financial Corporation and made a payment of ` 9,50,000 to the UP Financial Corporation through various cheques and demand drafts during the period 2000 to 2002.
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State v. Khalil Ahmed
(iv) It was alleged that accused had purchased a lancer car in
the sum of ` 5.00 lac from one Mukesh.
(v) It was alleged that accused had purchased a three storied
house bearing no. 503/22 Zakir Nagar, Okhla.
(vi) It was alleged that the present market value of above
properties and car is above one crore, which is beyond the known source of income of accused. Thus, it was alleged that accused had acquired the above properties by extortion and other fraudulent means by running an organized crime syndicate, accordingly Section 4 of MCOCA was added in the challan.
7. It was alleged that during investigation, four bank accounts of accused, two bank accounts of his wife Reshma Khalil and one bank account in the name of daughter of accused named Ms Ananta Khalil were surfaced and scrutiny of transactions revealed that substantial amount have been involved which is beyond the known source of accused.
8. It was alleged that accused had procured mobile connection bearing no. 9210459185 by using the ID of Avinash Chader Chawla whereas mobile connection bearing no. 9871144610 SC Nos. 57 of 2010 Page no. 7 of 35 State v. Khalil Ahmed was purchased in the name of Razia Rajesh, sister in law of accused. It was alleged that on scrutiny of calls detail of both the phones, it was revealed that location of accused on February 17, 2009 was found in the area of Khari Baoli.
9. It was alleged that accused was found involved in more than 34 cases and details of cases wherein cognizance had been taken during the last 10 years have been filed on record.
10. It was alleged that the remaining associates of accused could not be identified due to non-co operation of the accused.
11. At last it was alleged that accused Khalil Ahmed along with his associates has been running an organized crime syndicate in Delhi with an intention to get pecuniary gain by committing various crimes by threat, extortion, murder, attempt to murder, kidnapping assault etc.
12. After obtaining sanction under Section 23 of MCOCA, challan was filed for the offence punishable under Sections 3(2), 3(4) and Sec.4 of MCOCA and under sections 384/386/506/467/468/471 IPC.
13. Investigating officer filed a supplementary challan SC Nos. 57 of 2010 Page no. 8 of 35 State v. Khalil Ahmed alleging that market value of property bearing no. S-18 Handloom Complex Industrial Estate, Loni, Ghaziabad was found ` 60,90,000 whereas the market value of property bearing no. 503/22 Zakir Nargar Okhla was found ` 8,14,650/-.
14. It was further alleged that accused had purchased many items worth of ` 5,48,681/- by using his different five credit cards during the period 2006 to 2009. It was also alleged that accused had filed his ITRs under two different PAN which is not permissible. Besides that investigating officer also filed the FSL result on the court record.
15. In order to seek discharge for the offences punishable under Sections 3(2), 3(4) and Section 4 of MCOCA, learned counsel appearing for accused raised the following contentions:-
(I) That there is no iota of evidence to show that accused was either running any organized crime syndicate or was acting on behalf of any such syndicate. Similarly, there is nothing on record to show that accused was member of any such syndicate.
(II) That approval and sanction was granted in mechanical manner because the approval order bears the date 'March 20, 2009' whereas it approval was granted on March 19, 2009. It was urged SC Nos. 57 of 2010 Page no. 9 of 35 State v. Khalil Ahmed that accused has been shown a resident of 22/4, Gali Hingabeg, Tilak Bazar whereas prosecution case was that accused was residing at F-2 Andrew Ganj, New Delhi. It was contended that accused had sold the property bearing no. 22/4 Gali Hingabeg Tilak Bazar on March 22, 2000 through sale deed.
(III) That approval was granted against the accused on the ground that accused was planning to harm life and property of complainant Qmar Ahmed and his family with the help of his associates and syndicate members whereas sanction was granted on the ground that accused was engaged in illegal acts of murder, attempt to murder, intimidation, extortion and kidnapping etc. and have been continuing in unlawful activity as a member of crime syndicate. Thus, it was argued that approval and sanction order are contradictory to each other.
(IV) That prosecution failed to fulfill the condition of Section 2 (d) of the Act. It was argued that though prosecution has filed the list of 34 previous criminal cases yet the said cases do reflect that accused was involved in organized crime activities or acted on behalf of any syndicate.
(V) That prosecution failed to produce any evidence to show that accused had committed any organized crime for pecuniary SC Nos. 57 of 2010 Page no. 10 of 35 State v. Khalil Ahmed gain.
(VI) That property bearing no. 503/22, Zakir Nagar, Okhla, New Delhi and industrial plot bearing no. S-18, Handloom Complex, Industrial Estate, Loni, Ghaziabad were purchased between 1999 to 2002, thus the provisions of MCOCA can not be invoked qua above properties. It was further contended that the said properties were purchased after selling property bearing no.22/4 Gali Hingabeg, Tilak Bazar, Delhi. It was argued that there is no evidence that accused had acquired said properties by any unlawful activities. It was submitted that investigating officer had exaggerated the value of said properties, which shows that investigation had not been conducted fairly and impartially.
(VII) That though prosecution has filed the detail of bank accounts of accused and his family members yet prosecution failed to point out even a single entry which can be connected with any alleged unlawful activity.
(VIII) That accused was getting rental income to the tune of ` 15,000/- to ` 20,000/- per month from the commercial property as well as one floor of the house of Zakir Nagar and same was disclosed to the investigating officer but he refused to entertain the same. It was further contended that it is admitted case of prosecution that SC Nos. 57 of 2010 Page no. 11 of 35 State v. Khalil Ahmed accused was running and Tour and Travel business but investigating officer failed to entertain the income from said business.
(IX) That accused has been filing ITR for the last 10 years and had taken a loan of ` 3,00,000/- from ICICI Bank but investigating officer failed to consider the same.
16. Per contra, learned Additional Public Prosecutor countered the said contentions by arguing that accused was found involved in as many as 34 criminal cases and in some cases he was found in the activities of extortion, murder, kidnapping, attempt to murder and intimidation etc and by doing the above unlawful activities, accused had obtained pecuniary gain. It was argued that by the said unlawful pecuniary gain, accused had acquired numerous movable and immovable properties worth of crores. It was contended that prosecution has fulfilled the requirement of Section 2(d) and 2(e) of the Act. It was submitted that there are sufficient evidence to make out a prima-facie case under Section 3(2) and 3(4) of MCOCA. It was further contended that since accused had acquired numerous properties without having any source of income, he had also committed an offence punishable under Section 4 of the Act.
17. I have heard Sh. R.P. Tyagi, Advocate, learned counsel for the accused and Sh. R.K. Tanwar, learned Additional Public SC Nos. 57 of 2010 Page no. 12 of 35 State v. Khalil Ahmed Prosecutor for the State, perused the record carefully and gave my thoughtful consideration to their contentions.
18. In order to deal with the contentions raised by learned counsel for parties, it may be useful to refer the statement of objects and reasons for which the act was enacted and the definition in Section 2 of the Act.
"STATEMENT AND OBJECT"
Organised crime has for quite some years now come up as a very serious threat to our society. It knows no national boundaries and is fueled by illegal wealth generated by contract killings, extortion, smuggling in contrabands, illegal trade in narcotics, kidnappings for ransom, collection of protection money and money, laundering, etc. the illegal wealth and black money generated by the generated by the organized crime is very huge and has serious adverse effect on our economy. It is seen that the organised criminal syndicates make a common cause its terrorist gangs and foster narco terrorism which extend beyond the national boundaries. There is a reason to believe that organised criminal gangs are operating in the State and thus, there is immediate need to curb their activities.
It is also noticed that the organised criminals make extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice.
The existing legal frame work i.e. the penal and procedural laws and the adjudicatory system are found to be rather inadequate to curb or control the menace of organised crime. Government has, therefore, decided to enact a special law with SC Nos. 57 of 2010 Page no. 13 of 35 State v. Khalil Ahmed stringent and deterrent provisions including in certain circumstances power to intercept wire, electronic or oral communication to control the menace of the organised crime."
Organised Crime has been defined under Section 2(e) of the Act and same runs as under:
2(e) "Organised Crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.
Continuing unlawful activities and organised crime syndicate are defined under Section 2(d) and 2(f) of the Act and same run as under:
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 organised 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.
2(f) "Organised Crime Syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime.
(emphasis supplied)
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State v. Khalil Ahmed
19. Since the definitions, though inter-winded in a cyclic order, are clear and unambiguous, it would follow that each ingredient in the definitions, or the alternative thereof provided by the definitions themselves, would have to be proved. Viewed thus, for charging a person of organised crime or being a member of organised crime syndicate, it would be necessary to prove that the persons 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 organised crime syndicate i.e. acting as
syndicate or a gang, or on behalf such syndicate,
(vi) (a) in respect of similar activities (in past) more than one charge sheets have been filed in competent court within the preceding 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 or 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.
(Relied on Prafulla versus State of Maharastra)
20. In case State of Maharastra & others v/s Lalit Somdattal Nagpal & others, SLP No. 3320-21 of 2005, 1101,4581,4611 of 2006 decided on 13.02.2007, Apex Court observed that:
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State v. Khalil Ahmed
"However, we are in agreement with the submission that having regard to the stringent provisions of MCOCA, its provisions will have to be very strictly interpreted and the concerned authorities would have to be bound down to the strict observance of the said provisions. There can be no doubt that the provisions of the MCOCA have been enacted to deal with the organized criminal activity in relation to offences which are likely to create terror and to endanger and unsettle the economy of the country for which stringent measures have been adopted. The provisions of the MCOCA seek to deprive a citizen of his right to freedom at the very initial stage of the investigation, making it extremely difficult for him to obtain bail. Other provisions relating to the admission of evidence relating to the electronic media have also been provided for. In such a situation it is to be seen whether the investigation from its very inception has been conducted strictly in accordance with the provisions of the Act".
21. To make a prima-facie case against the accused under MCOCA first of all prosecution has to show prima-facie that accused was either a member of organised crime syndicate or gang or was acting on behalf of such syndicate or gang.
22. Though in the charge-sheet it is alleged that accused was running an organised crime syndicate with the help of his associates, yet investigating officer failed to describe that alleged syndicate. Even investigating agency failed to identify the associates of accused on the ground that accused had not co-operated during the investigation. Needless to say that right to remain silent is the fundamental right of the accused, thus the reason furnished by the investigating agency for not ascertaining the identity of his alleged associates is not justifiable.
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State v. Khalil Ahmed
23. It is admitted case of the prosecution that accused was found involved in more than 34 criminal cases. Even some cases, accused had been charge-sheeted along with other persons. Despite that no efforts were made to find out whether his earlier co-accused were the persons to whom he had sent at the shop of complainant for the demand of extortion of ` 10.00 lac. Investigating officer could easily show the dossier of earlier co-accused of Khalil Ahmed to the complainant and other witnesses to ascertain as to whether his earlier companions were the persons who had threatened the complainant on behalf of accused Khalil. But no such efforts were made in this regard.
24. Investigating officer has filed the list of 34 cases showing the involvement of accused since 1985 to 2009. In 1996 accused was charge-sheeted for the offence punishable under Sections 392/397/34 IPC in case FIR No.30/96 PS Keshav Puram and again charge-sheeted for the offence punishable under Sections 387/506/34 IPC in case FIR No. 39/08 PS Spl. Cell. In case FIR No. 39/08 accused was charge-sheeted along with one Amit Vaish @ Jugnu whereas in case FIR No. 30/96 said Amit Vaish @ Jugnu was not an accused. In all the 34 cases, either accused Khalil is alone chargesheeted or if there is any co-accused, then that person was not charge-sheeted in subsequent cases. Thus, there is no common accued in more than one case. In these circumstances, it cannot be SC Nos. 57 of 2010 Page no. 17 of 35 State v. Khalil Ahmed said that accused was running any syndicate or gang or acting on behalf of any such syndicate or gang. Similarly, there is no evidence on record that persons who had threatened the complainant on behalf of accused Khalil were the persons who ever associated with the accused in any criminal activity.
25. Prosecution case is that two persons visited the shop of complainant and handed over their mobile phone to the complainant and forced the complainant to talk with accused Khalil Ahmed. During investigating, police had recovered two mobile phones from the accused, but no efforts were made by the police to ascertain the identity of said two associates from the call details of the recovered mobile phones.
26. Now coming to the approval and sanction order passed by Mr. P.N. Aggarwal, Joint Commissioner of Police, Special Cell. Approval was granted on March 19, 2009 whereas sanction order was passed on June 11, 2009. When the investigation was not concluded, approval was granted stating that accused Khalil Ahmed was running a crime syndicate for committing organised crime, who is planning to harm the lives and property of Shri Kanwar Ahmed and his family with the help of his associates/syndicate members. When investigation was completed, sanction to prosecute the accused was accorded stating that accused was engaged in illegal SC Nos. 57 of 2010 Page no. 18 of 35 State v. Khalil Ahmed acts of murder, attempt to murder, criminal intimidation, extortion and kidnapping etc and have been continuing in unlawful activities as a member of of an organised crime syndicate.
27. Approval order and Sanction order are paradoxical because as per approval accused Khalil Ahmed was running an organised crime syndicate whereas as per sanction order he was merely a member of the organised crime syndicate. It means that after investigation, investigating officer found that accused was not running an organised crime syndicate but he was merely a member of said syndicate. There is nothing in charge-sheet to show who was running the organised crime syndicate, of which accused Khalil Ahmed is merely a member.
28. From the above, it can be culled out safely that investigating agency failed to collect sufficient evidence to show prima-facie that accused was either running an organised crime syndicate or was member of any such syndicate.
29. Now coming to the contentions relating to as to whether charge-sheet filed against the accused satisfied the condition of Section 2(d) of the Act or not?
30. In order to satisfy the condition of Section 2(d) of the SC Nos. 57 of 2010 Page no. 19 of 35 State v. Khalil Ahmed Act, prosecution has relied upon the list of 34 criminal cases, which were filed against the accused during the period 1985 to 2009. These 34 cases includes present one. Scrutiny of the cases reveals that prosecution has not filed the copy of charge-sheet of 20 cases, thus these 20 cases can not be considered at the time of considering the continuous unlawful activities of the accused because in the absence of charge-sheet, this Court unable to ascertain as to whether the offence committed therein was related to organised crime or not. Out of remaining 16 cases, two cases (FIR No. 183/2006 and 96/2006) pertained to the offence punishable under Section 25 of the Arms Act. One case (FIR No. 09/2004) pertained to Section 20 of NDPS Act. By no stretch of imagination, the offences allegedly committed under the above FIRs can be considered as an offence committed either as a member of an organised crime syndicate or on behalf of such syndicate.
31. Three cases (FIR No. 34/1992,395/2001 and 85/1986) were registered against the accused for the offence punishable under Section 307 IPC. The allegations against the accused in the first case (FIR No. 34/1992) were that since complainant party refused to withdraw a criminal case against accused, accused had fired at the complainant party. There is no allegation that the said offence was committed as a member of organised crime syndicate or on behalf of such syndicate. Similarly, in case (FIR No. 395/2001) no cause is SC Nos. 57 of 2010 Page no. 20 of 35 State v. Khalil Ahmed disclosed in the charge-sheet, however perusal of the charge-sheet reveals that the incident had occurred due to some previous enmity. Thus, the said offence was also not committed either as a member of an organised crime syndicate or on behalf of such syndicate. In the third case (FIR No. 85/1986) an attempt was made to fire at the police party, thus again there was nothing on record, which may show that it was committed either as a member of an organised crime syndicate or on behalf of such syndicate. By no stretch of imagination, it can be said that the said offences were committed with an objective to gain pecuniary benefits or gaining undue economic advantage. It is pertinent to state here that as per the charge-sheet accused had committed the unlawful activities in order to gain pecuniary benefits, thus there is no allegation against the accused that accused had gained any other advantage for himself or for any other person by committing the above offences.
32. One case (FIR No.1/1989) was under Section 308/34 IPC. As per FIR said incident had taken place all of sudden in a restaurant, thus is not related to an organised crime syndicate or committed with an objective to gain any pecuniary benefit.
33. Two cases (FIR No. 345/2004 & 144/1996) pertained to the incident where accused had prevented police officials from discharging their duties. In the former case, accused had fled away SC Nos. 57 of 2010 Page no. 21 of 35 State v. Khalil Ahmed from the custody of police whereas in the latter case accused along with his associates fired at the police party, when police party intercepted their vehicle. There is nothing in the charge-sheet of above cases, which may show that the offence committed therein pertained to the organised crime or the same were committed either as a member of an organised crime syndicate or on behalf of such syndicate.
34. Case (FIR No. 437/2005) under section 506 IPC pertained to a dispute between the accused and his sister-in-law as accused was demanding share of his wife from the property left behind by his father-in-law. Thus, by no stretch of imagination, it can be culled out that the offence was committed either being a member of organised crime syndicate or behalf of such syndicate.
35. Three cases (FIR No. 30/1996, 304/1995 and 39/2008) pertained to the offence of robbery, dacoity and extortion. In all the cases, accused was one of the co-accused. Perusal of charge-sheets reveals that the said offences were committed with the objective of gaining pecuniary benefits. To satisfy the condition of Section 2(d) of the Act, prosecution has to show prime-facie that the said offences were committed either as a member of an organised crime syndicate or on behalf of such syndicate. Perusal of case FIR No. 30/1996 reveals that there were six accused namely (i) Firoz Alam (ii) Ajay SC Nos. 57 of 2010 Page no. 22 of 35 State v. Khalil Ahmed
(iii) Satya Prakash (iv) Anup @ Sunil (v) Mohd. Akram (vi) Khalil Ahmed. In case FIR No. 304/1995, there was eight accused persons namely (i) Khalil Ahmed (ii) Mohd Nadim (iii) Mohd. Faruk (iv) Mohd. Shaikl (v) Mohd. Nadim Amani (vi) Aklakh Ahmed (vii) Firoz Alam (viii) Salim whereas in case FIR No. 39/2008 there were only two accused namely (i) Khalil Ahmed and Amit Vaish @ Jugnu. Thus, it becomes clear that all the accused involved in the said cases were different except accused Firoz Alam, who was involved in first two cases. In these circumstances, it can not be said that the accused had formed a syndicate or gang with the said persons. Since, the investigating agency failed to ascertain the identity of culprits who had threatened the complainant in the present case, presumption will be drawn that the persons involved in above three cases where not the persons who had threatened the complainant in the present case. This again shows that there was no syndicate. All the above cases shows only one thing that accused is a known criminal but to attract the provisions of MCOCA, prosecution has to show some thing more i.e. he either running an organised crime syndicate or a member of such syndicate or acted on behalf of such syndicate or that accused was running a gang or acted as a member of gang or behalf of such gang. Mere fact that accused had previously involved in some robbery, dacoity and extortion cases with some other accused persons is ipso-facto is not sufficient to draw an inference that accused was running an organised crime syndicate or acted on behalf of such SC Nos. 57 of 2010 Page no. 23 of 35 State v. Khalil Ahmed syndicate. It is pertinent to state here that there is nothing in the above cases, which may show that accused Khalil was running any syndicate or gang.
36. Considering the above, I am of the considered view that prosecution has failed to show prima-facie that the above three cases were committed by the accused Khalil Ahmed as a member of an oganised crime syndicate or on behalf of such syndicate, thus I am of the opinion that the said three cases also do not qualify the requirement of Section 2(d) of the Act.
37. Adverting to the contentions relating to so called huge properties acquired by the accused. According to the prosecution accused had acquired three immovable properties namely 503/22 Zakir Nagar, Okhla, New Delhi (in short property no.1), 113A-Vill Adhchhini, Delhi (in short property no.2) and S-18 Handloom Complex, Industrial Estate, Loni, Ghaziabad (in short property no.3) and one movable property i.e lancer car (in short property no.4). Prosecution case is that accused had acquired the said properties by doing unlawful activities and occupied the properties being the member of an organised crime syndicate. I shall discuss all the properties one by one.
38. According to the prosecution, accused had got SC Nos. 57 of 2010 Page no. 24 of 35 State v. Khalil Ahmed transferred property no.1 in the joint of himself and his wife from one Rehna Begum. Investigating officer failed to trace out transferor Rehna Begum. During investigation, it was surfaced that the said property was got transferred on the forged documents, consequently Section 467/468/471 IPC were inserted in the challan. Perusal of documents seized by the investigating officer reveals that Rehana Begum had sold the said property to the accused and his wife in the sum of ` 70,000/- on October 6, 2000. Since, Rehna Begum could not be examined by the investigating officer, it can not be said that accused had not paid the sale consideration to the vendor i.e. Rehna Begum. There is no evidence on record whatsoever that value of said property in 2000 was more than ` 70,000/- or accused had forced the vendor to sell the property against her wishes at throw away price. Moreover, there is no allegation against the accused that accused had acquired the said property by committing an offence as a member of an organised crime syndicate or behalf of such syndicate. The mere allegation is that he acquired the property by doing unlawful activities/offences.
39. During the investigation, investigating officer had obtained a valuation report of the said property, according to which market value of the said property as on November 3, 2009 was ` 8,14,650/-. I am unable to understand what prosecution wants to prove by placing the present market value of the property. There is SC Nos. 57 of 2010 Page no. 25 of 35 State v. Khalil Ahmed no evidence on record that market value of said property not ` 70,000/- in the year 2000 which it was allegedly purchased by the accused. Prosecution failed to produce the sale deed of any other similar property located in the said area to show that the value of said property was much above ` 70,000/-.
40. Qua property no.2, prosecution case is that said property was sold by one Riazudding to Ashfaq through GPA and agreement to sell and affidavit and said documents were got prepared from accused Khalil Ahmed. It was alleged that documents prepared by accused are forged as the stamp appearing on the said documents is found fake. Assuming for the sake of argument that the stamp of Notary Public on the said documents is forged, how it attracts the provisions of MCOCA. There is no allegation that there was any dispute between vendor and vendee. Second allegation against the accused is that vendee Ashfaq had not received the documents of property despite making payment to accused. Documents seized by police reveals that vendor Riazuddin had sold the property to vendee in the sum of ` 2,75,000/- on January 5, 2008 and payment was received by Riazuddin. Since the property was sold by Riazudding to Ashfaq, there was no occasion for Ashfaq to make payment to the accused. Moreover, there is no allegation that Riazudding had not received the payment of said transaction. Third allegation against the accused is that he had occupied a portion of the said property SC Nos. 57 of 2010 Page no. 26 of 35 State v. Khalil Ahmed illegally. It is not clear if accused had occupied a portion of said property forcibly, why Ashfaq had not taken any action against the accused. Learned counsel submits that accused is a tenant in the said premises. Thus, it appears that there is some civil dispute between them. Neither there is any allegation nor it can be culled out by any stretch of imagination that the said act could fall within the purview of an organised crime.
41. Qua property no.3, prosecution case is that accused had purchased an industrial plot from UP Financial Corporation and had made the payment of ` 9.50 lac through various cheques and drafts, which was earned by the accused by doing unlawful activities of violence etc. and value of said property is ` 60,90,000/-. During investigation, investigating officer had collected a letter dated March 26, 2009 from the office of UP Financial Corporation wherein it was stated that the said plot was sold to M/s Infab Exports of Mr. Khalil Ahmed in the sum of ` 7,80,000/- , which he had paid in 15 installments amounting ` 9,41,125. It means that accused had paid interest to the tune of ` 1,61,125/-. If accused had earned huge amount by doing unlawful activities as alleged by the investigating officer, why accused would pay so much interest to the Corporation. Similarly, if the value of plot was merely, ` 7,80,000/-, what was the logic to state that the marked value of plot is ` 60,90,000/-. If the value of the plot is appreciated during 1999 to 2009, then what is the SC Nos. 57 of 2010 Page no. 27 of 35 State v. Khalil Ahmed fault of accused. It appears that appreciated value has been mentioned in the charge-sheet to mislead the court otherwise there was no occasion to mention the estimated present market value of the plot when the exact value of the plot is undisputed.
42. Defence case is that accused had purchased the property no.1 and 3 after selling his ancestral property bearing no. 22/4 Gali Hingabeg, Tilak Bazar, Delhi, photostat copy of the sale deed is on record. It was further stated that accused had also taken a loan of ` 3.00 Lac from ICICI Bank at the time of getting registration of sale deed of S-18 Handloom and letter in this regard from Bank is on the record. It is pertinent to mention here that taking of loan and selling of one property at the time of acquiring another is not uncommon, thus the defence version appears more plausible. Further, it is admitted case of prosecution that accused was running a business of Tour and Travels, thus accused must have some income from the said business. Hence, it can not be said that accused had no source of income.
43. At last but not least, though prosecution has filed a list of 34 cases against the accused yet only four cases (FIR No. 20/92, 30/96, 304/95 and 39/2008) were found which were committed with an objective to gain pecuniary benefits. The above properties were acquired during 1999-2000, thus accused could not acquire the said SC Nos. 57 of 2010 Page no. 28 of 35 State v. Khalil Ahmed properties from the pecuniary gain, which he had allegedly taken from the offence committed in 1992, 1995 and 1996 because the said offences were committed much prior to acquiring the said properties. According to the list no crime was committed near the period of 1999-2000 by which accused had gained some pecuniary benefit. Similarly, the pecuniary benefit if any, had been gained by the accused by committing offence in 2008, can not be used in acquiring the said properties because by that time accused had already acquired the said properties. Moreover, there is nothing on record, which may show that accused had actually had acquired any pecuniary benefit in case FIR No.39/2008.
44. Qua property no.4 i.e. lancer car, according to the prosecution, accused had purchased the said car valued of ` 5,00,000/- from one Mukesh in the year 2007. During investigation, investigating officer had recorded the statement of Mr. Mukesh, who was working as peon in Ministry of Home Affairs and disclosed before the investigating officer that he had sold the said car in the sum of in the sum of ` 1,70,000/-. I am unable to understand if the car was sold in the sum of ` 1.70 lac in 2007 how it could be appreciated to the tune of ` 5.00 Lac in the year 2009, when the value of car is depreciated even just after buying being labelled as second hand car. This shows that the investigation has not been conducted fairly and impartially.
SC Nos. 57 of 2010 Page no. 29 of 35
State v. Khalil Ahmed
45. To invoke Section 4 of the MCOCA, prosecution has to show prima-facie that accused was holding the above properties either being the member of an organised crime syndicate or on behalf of any member of such syndicate. As already discussed that prosecution has failed to show prima-facie that accused was either running an organised crime syndicate or acted on behalf of such syndicate, thus the question of holding the above properties being the member of such syndicate does not arise. Further, there is no iota of evidence that accused was holding the said properties on behalf of any member of such syndicate. Thus, to my mind prosecution has failed to make out a prima-facie case for the offence punishable under Section 4 of the MCOCA.
46. Now coming to the contentions relating to various bank accounts and credit/debit cards.
47. As per prosecution version accused was maintaining four bank accounts, two accounts were maintained by his wife while his daughter was maintaining one bank account. By totalling the debit and credit balance, investigating officer has mentioned the amount in the charge-sheet, which is not the proper method to analysis an account of a person. During the course of arguments, neither learned Public Prosecutor nor investigating officer able to SC Nos. 57 of 2010 Page no. 30 of 35 State v. Khalil Ahmed point out any entry or specific period which appeared doubtful. Analysis of all the bank accounts filed by the prosecution on record reveals that accused had deposited minimum ` 400 and maximum ` 60,000/- in the accounts. It is admitted case of the prosecution that accused was running a Tours and Travels business, in such type of business maximum transactions take place in cash. In the absence of any contrary evidence, I do not find any reason to disbelieve the contention of learned defence counsel that the credit entry in the bank accounts pertain to the sale proceeds of the said business. Moreover, it looks quite absurd that a person of criminal mind would deposit the booty in the bank account. If prosecution version is believed that it means that all credit entries such as ` 400/-, ` 1000/- ` 2000/-, ` 2500/- and so on were part of booty amount. To my mind, it would amount an illogical inference.
48. Similarly, prosecution case is that accused had purchased various items worth of ` 5,84,681/- during December 2006 to March 2009. Perusal of the details reveals that the said amount includes the amount incurred on petrol etc. Further, it also looks quite absurd that any criminal first commit the offence, then he will do purchasing from his credit/debit card, then deposit the amount in his bank account to clear the payment of bill of purchasing. Thus, in the absence of any other evidence, no presumption can be drawn that the amount spent by accused through SC Nos. 57 of 2010 Page no. 31 of 35 State v. Khalil Ahmed credit/debit cards was generated from illegal activities. Moreover, as already said that there is nothing on record to show that accused had held the said amount either being a member of an organised crime syndicate or on behalf of such syndicate.
49. Now coming to the contentions relating to non- application of mind at the time of granting sanction to prosecute the accused for the offence committed under MCOCA.
50. Learned defence counsel assailed the sanction order on two counts namely that approval order was signed on March 19,2009 whereas order bears the date March 20,2009 and second that residential address of the accused was mentioned as 22/4 Gali Hinga Begh, Tilak Bazar, Delhi whereas he had already sold the said house much prior to 2009 and as per prosecution accused was residing at F-2 Andrew Ganj, New Delhi.
51. Perusal of approval order reveals that it was signed on March 19,2009 and it is also clear that at the top of order date is mentioned as March 20, 2009. But it appears that March 20, 2009 is the dispatch date of the order whereas the order was signed only on March 19, 2009. This does not reflect non-application of mind in any manner. Perusal of approval order further reveals that the residential address of the accused is mentioned as 22/4 Gali Hinga Begh, Tilak SC Nos. 57 of 2010 Page no. 32 of 35 State v. Khalil Ahmed Bazar, Delhi whereas as per prosecution version at the time of arrest accused was residing at F-2 Andrew Ganj, New Delhi which alloted to one Head Constable and disciplinary action has been recommended against him as he let out the official accommodation to the accused. Though there is no reasonable explanation on the part of prosecution why the address of Tilak Bazar is mentioned in the approval order when accused was residing at Andrew Ganj at the time of arrest, yet I am of the view said lacuna does not prove non- application of mind. Needless to say, generally granting authority notes down such type of information from the notes furnished by the investigating officer. Admittedly, it was an ancestral house of the accused, thus it is not the defence version that accused had no concern with the said property. Moreover, during the course of arguments, learned defence counsel failed to point out what prejudice is caused to the accused by the said discrepancy in the approval order. Thus, I am of the view that the said contention is without any substance.
52. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to make out a prima- facie case against the accused Khalil Ahmed for the offence punishable under Section 3(2), 3(4) and Section 4 of the MCOCA. Thus, I hereby discharge the accused Khalil Ahmed from the above charges.
SC Nos. 57 of 2010 Page no. 33 of 35
State v. Khalil Ahmed
53. Now coming to the question whether any other case is made out against the accused under penal code.
54. Perusal of the statement of complainant, his partner Sanjeev and servant Imran, it becomes clear that there are sufficient evidence on record to make out a prima-facie case that accused and his unknown associates had put the complainant in the fear of death of himself and family member and by putting him in the fear of such death, accused had induced the complainant to deliver ` 10.00 Lac to him, it further becomes clear that there are sufficient evidence on record to make out a prima-facie case that in order to commit the offence of extortion, accused had put the complainant in the fear of such death. Thus, I am of the view that there are sufficient evidence to make out a prima-facie case for the offence punishable under Section 386/387 IPC. Similarly, from their statements recorded under Section 161 Cr.P.C. prima-facie it is also proved that accused had criminally intimidated by threatening the complainant to kill him and his family, thus prima-facie a case is made out against the accused for the offence punishable under Section 506 Part II IPC.
55. Similarly on perusal of the charge-sheet and the statement recorded under Section 161 Cr.P.C., there are sufficient evidence on record to make out a prima-facie case that accused had SC Nos. 57 of 2010 Page no. 34 of 35 State v. Khalil Ahmed prepared transfer documents of property bearing no. 503/22 Zakir Nagar, Okhla to set up his claim over the property and in fact claiming his right over the property. During investigation, it was revealed that the stamp paper on which documents were prepared were not issued by the vendor whose name is mentioned behind the said documents and the seal of notary affixed on the said documents also found forged. Thus, to my mind there are sufficient evidence to make out a prima-facie case for the offence punishable under Section 468/467/471 IPC.
56. In nut-shell there are sufficient evidence on record to make out a prima-facie case against the accused for the offence punishable under Section 386/387/506-Part-II IPC as well as for the offence punishable under Section 467/468/471 IPC. However, there are not sufficient evidence to make out a prima-facie case against the accused for the offence punishable under Section 3(2), 3(4) and Section 4 of the MCOCA, thus I hereby discharge the accused Khalil Ahmed for the charges levelled thereunder.
Announced in the open Court on this 16th day of November, 2011. (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC/DELHI SC Nos. 57 of 2010 Page no. 35 of 35