Karnataka High Court
Abdul Rasheed vs State By Subramnyapura Police Station on 25 September, 2019
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL PETITION NO. 6427 OF 2019
C/W
CRIMINAL PETITION NO. 6426 OF 2019
AND
CRIMINAL PETITION NO. 6483 OF 2019
IN CRL.P.NO.6427/2019
BETWEEN:
1. ABDUL RASHEED
@ PUTTU BAYER
S/O AHMED HOSINAR
AGED ABOUT 48 YEARS
R/AT TARUL HAIBA
OPP:MOUNTAIN SCHOOL
SALAMAR, PUTTUR
D.K - 574203.
2. ZUBAIR KHAN
S/O RASHEED KHAN
AGED ABOUT 33 YEARS
R/AT NO.17, 7TH CROSS
L B SHASTRINAGAR
HAL POST
BANGALORE - 560017.
... PETITIONERS
(BY SRI VENKATESH NAIK - ADVOCATE)
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AND
STATE BY SUBRAMNYAPURA POLICE STATION
(CCB POLICE [OCW])
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
HIGH COURT
BANGALORE - 560 001.
... RESPONDENT
(BY SRI V M SHEELAVANT , SPP-I, A/W
SRI ROHITH B J - HCGP)
THIS CRL.P IS FILED U/S.439 CR.P.C
PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR. NO. 160/2019 OF SUBRAMANYAPURA POLICE
STATION, BENGALURU CITY FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 24, 62, 80 OF
KARNATAKA FOREST ACT 1963, SEC. 144, 145 OF
KARNATAKA FOREST RULES 1860 AND SEC. 379, 419,
420, 468, 471, 120-B OF IPC AND SEC. 3 OF KCOCA
ACT, 2000.
IN CRL.P.NO.6426/2019
BETWEEN:
1. SALEEM KHAN
S/O ARIF ULLA KHAN
AGED ABOUT 50 YEARS
R/AT NO.36/37, 6TH CROSS
JYOTHINAGAR, HAL POST
BANGALORE - 560017.
2. TAHIR KHAN
S/O SALEEM KHAN
AGED ABOUT 25 YEARS
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R/AT NO.36/37, 6TH CROSS
JYOTHINAGAR, HAL POST
BANGALORE - 560017.
3. ASHWAQ
S/O AKRAM KHAN
AGED ABOUT 25 YEARS
R/AT NO.19, F STREET
J J NAGAR
BANGALORE - 560 026.
4. M S BASHA
S/O SIDDIQUE KHADRI
AGED ABOUT 40 YEARS
R/AT NO.9, 2ND CROSS
SYED BLOCK
ANNASANDRA PALYA, HAL
BANGALORE - 560017.
5. SHAFI
S/O MOHAMMED
AGED ABOUT 30 YEARS
R/AT NO. 4/138, GUNDAMAJAL
VIJAYADAKA POST
KAROPADIGRAMA
BHANTWALA TALUK
D.K. - 574143.
6. MUNNA @ MOHAMMED SHABIR
S/O ABBAS
AGED ABOUT 25 YEARS
R/AT NO.2/202, SAJIPANADU VILLAGE
THANCHIVATTE HOUSE, SAJIPA POST
BHANTWALA TALUK
D.K. - 574211.
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7. NAUSHAD
S/O MOHAMMED
AGED ABOUT 27 YEARS
R/AT PALLAM HOUSE
PERUMALIA POST
PAIBALIGE VILLAGE
KASARGODU
KERALA - 671121.
8. SADDIQUE @ ABUBAKAR
S/O MOHAMMED
AGED ABOUT 40 YEARS
R/AT PICHATAVEL HOUSE
BADAJA POST, MANJESWAR
KASARGODU
KERALA - 671323.
9. IBRAHIM
S/O ISMIAL
AGED ABOUT 28 YEARS
R/AT VIDYA NAGARA
NARIMGANA VILLAGE
BHANTWALA TALUK
D.K.-574143.
10. ANNU @ MOHAMMED ANWAR
S/O ABDULLA
AGED ABOUT 23 YEARS
R/AT MUGALE MANE
KARAPADI VILLAGE
BHANTWALA TALUK
D.K. - 574143.
... PETITIONERS
(BY SRI RAJESH RAI - ADVOCATE)
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AND
STATE BY SUBRAMNAYAPURA
POLICE STATION
(CCB POLICE [OCW])
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
HIGH COURT
BANGALORE - 560 001.
... RESPONDENT
(BY SRI V M SHEELAVANT , SPP-I A/W
SRI ROHITH B J - HCGP)
THIS CRL.P IS FILED U/S.439 CR.P.C
PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR. NO. 160/2019 REGISTERED BY
SUBRAMANYAPURA POLICE STATION, BENGALURU
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS
24, 62 AND 80 OF KARNATAKA FOREST ACT 1963,
RULES. 144, 145 OF KARNATAKA FOREST RULES
1860, AND SEC. 379, 419, 420, 468, 471 R/W 120-B OF
IPC AND SEC. 3 OF KARNATAKA CONTROL OF
ORGANIZED CRIME ACT, 2000.
IN CRL.P.NO.6483/2019
BETWEEN:
MUBARAK
S/O MOHAMMED
AGED ABOUT 27 YEARS
R/AT RAM MANDIR ROAD
HARINAGAR, ANJANAPURA
BENGALURU - 560 062.
... PETITIONER
(BY SRI CHANDRAHASA RAI .B - ADVOCATE)
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AND
STATE OF KARNATAKA
BY SUBRAMNAYAPURA POLICE STATION
(CCB POLICE [OCW])
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001.
... RESPONDENT
(BY SRI V M SHEELAVANT , SPP-I A/W
SRI ROHITH B J - HCGP)
THIS CRL.P IS FILED U/S.439 CR.P.C
PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR. NO. 160/2019 OF SUBRAMANYAPURA POLICE
STATION, BENGALURU CITY FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 24, 62, 80 OF
KARNATAKA FOREST ACT, RULES 144, 145 OF
KARNATAKA FOREST RULES AND SEC. 379, 419, 420,
468, 471, 120-B OF IPC AND SEC. 3 OF KCOCA.
THESE CRIMINAL PETITIONS COMING ON FOR
ORDERS, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and the learned SPP-I for the respondent - State. Perused the records.
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2. Crl.P.No.6427/2019 is filed by Accused Nos.1 and 2. Crl.P.No.6426/2019 is filed by Accused Nos.3 to 12 and Crl.P.No.6483/2019 is filed by Accused No.13 in connection with Crime No.160/2019 of Subramanyapura Police Station for the offence punishable under Sections 24, 62, 80 of Karnataka Forest Act, 1963, Sections 144, 145 of Karnataka Forest Rules, 1860 and Sections 379, 419, 420, 468, 471, 120B of IPC. Subsequently, under Section 3 of Karnataka Control of Organized Crime Act, 2000 (for short "KCOCA") was also invoked after obtaining sanction from the competent authority.
3. The brief factual matrix of the case as could be seen from the records is that Accused Nos.3 to 14 are the associates of Accused Nos.1 and 2 and they have formed an organized crime syndicate and committed theft of red sandal wood by cutting them in Andhra Pradesh, Karnataka, Tamil Nadu and Kerala and stored them in Bengaluru and other places for the purpose of -8- transporting them to other places like Chennai, Mumbai and other places. In this context, a case has been registered against as many as Accused Nos.1 to 18 for the above said offences. The main allegation against Accused Nos.13 and 14 is that on the basis of the voluntary statement of Accused No.14 and at the instance of Accused No.13, a parcel has been booked in the name of one Dilip and on the basis of the said information the police have seized some red sandalwood pellets. On the basis of that Accused Nos.5, 13 and 14 have been involved in this particular case. Insofar as Accused Nos.1 and 2 are concerned, it is the allegation that they are operating throughout in the States of Tamil Nadu and Andhra Pradesh and they are the king pins who are using other accused persons for the purpose of cutting, storing and transporting the red sandalwood as noted above.
4. During the course of the arguments, the Court has questioned the learned SPP to disclose whether more -9- than two charge sheets have been filed against anyone of the accused persons i.e., Accused Nos.1 to 13 who are before this Court and whether cognizance has been taken against any one of them in Karnataka State. Learned SPP fairly submits that no such charge sheets have been filed against anyone of the accused as on today. Therefore, invocation of KCOCA, in my opinion, at this particular stage, is doubtful whether the accused persons are the members of any syndicate of accused Nos.1 and 2 and there are any charge sheets already been filed and cognizance has been taken against Accused Nos.1 and 2. Though learned SPP tried to argue that in Andhra Pradesh, there are two cases but no such materials have been placed before the Court whether the charge sheets have been filed against them or even in the sanction order passed by the competent authority, which is marked at Annexure-D in Crl.P.No.6427/2019. There is no specific mention with regard to the filing of any charge sheet against Accused Nos.1 and 2 though it
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is specifically stated that other cases in crime numbers are still pending investigation against Accused Nos.1 and
2. Against Accused No.1 as many as four cases are pending and against Accused No.2 three cases are pending at different places under the Wild Life Act, Forest Act and other provisions of IPC. But there is no mention in the said order itself that there are any charge sheets being filed against anyone of the accused persons including accused Nos.1 and 2 or not so as to invoke the provisions of KCOCA.
5. In this context, learned counsel for the petitioners relied upon a ruling of the Hon'ble Apex Court in the case of State (NCT of Delhi) vs. Brijesh Singh alias Arun Kumar and another reported in (2017) 10 SCC 779, wherein at para 25, the Hon'ble Apex Court has observed that "Organised crime which is an offence punishable under Section 3 of
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MCOCA means a continuing unlawful activity committed by use of force or violence for economic gain. One relevant precondition which has to be satisfied before any activity can be considered as a continuing unlawful activity is that there should be atleast two charge-sheets filed against the members of an organized crime syndicate within the previous 10 years and a "competent court" has taken cognizance of such charge-sheets." Therefore, this particular condition is conspicuously absent in this particular case.
6. Learned counsel for the petitioners also relied upon para - 32 of the said judgment wherein the Apex Court has observed that "However, we are in agreement with the submission of the learned Senior Counsel for the
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respondents that an activity of organized crime in Delhi is a sine qua non for registration of a crime under MCOCA. In the absence of an organized crime being committed in Delhi, the accused cannot be prosecuted on the basis of charge-sheets filed outside Delhi."
7. In this context, in my opinion, for the purpose of invoking provisions of KCOCA, two charge sheets should have been filed against any of the syndicate members. Though Accused Nos.1 and 2 are said to be involved in the activity of organized crime in various States taking assistance of other accused persons and it must be shown that there is an occasion between the accused Nos.1 and 2 and other accused persons and they were also the syndicate members. Of course, this can be done during the course of investigation. But for the present, as rightly pointed out by the learned counsel for the petitioners, there is no material to establish that the provisions of KCOCA could have been invoked.
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Therefore, as on the date, there are no materials to invoke KCOCA. The provisions of other Acts are not punishable either with death or imprisonment for life and offences under IPC are bailable in nature.
8. Under the above said facts and circumstances, I am of the opinion, the petitioners are entitled to be enlarged on bail with stringent conditions. Further, it is made clear that in future, if any materials are collected by the investigating agency to establish that the accused persons are the syndicate members of an organized crime and there are charge sheets filed against any of the accused persons prior to invoking of KCOCA, in such an eventuality, after invoking the provisions of KCOCA properly they are at liberty to move the Court for cancellation of bail on such changed circumstances. With these observations, the following order is passed:
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ORDER The Petitions are allowed. Consequently, the petitioners/accused Nos.1 to 13 shall be released on bail in connection with Crime No.160/2019 of Subramanyapura Police Station, CCB Police (OCW) registered against them for the offence punishable under Sections 24, 62, 80 of Karnataka Forest Act, 1963, Sections 144, 145 of Karnataka Forest Rules, 1860, Sections 379, 419, 420, 468, 471, 120B of IPC and Section 3 of Karnataka Control of Organized Crime Act, 2000, subject to the following conditions:
(i) The petitioners shall execute their personal bonds for a sum of Rs.2,00,000/-
(Rupees Two lakh only) each, with two solvent sureties for the like-sum to the satisfaction of the jurisdictional Court.
(ii) The petitioners shall not indulge in tampering the prosecution witnesses.
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(iii) The petitioners shall appear before the jurisdictional Court on all future hearing dates unless exempted by the Court for any genuine cause.
(iv) The petitioners/Accused Nos.1 and 2 shall not leave India without prior permission of the jurisdictional Court till the case registered against them is terminated. (v) The petitioners/Accused Nos.3 to 13 shall not leave the jurisdiction of Karnataka State without prior permission of the jurisdictional Court till the case registered against them is terminated.
(vi) The petitioners shall mark their attendance once in 15 days at the police station near to their residence, for a period of three months or till the final report is submitted to the Court.
Sd/-
JUDGE DKB