Delhi District Court
In Re vs . on 25 July, 2015
IN THE COURT OF MS. NEENA BANSAL KRISHNA, ASJ01, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
SC No. 115/13
FIR No. 20/13
PS : Special Cell
U/s 3/4 MCOCA, 419, 420, 120B IPC
In re :
STATE
Vs.
1. Ashwani Aggarwal @ Tinku Mandi
S/o Sh. Jai Narain Aggarwal
R/o H. No. B12, Tagore Road,
Adarsh Nagar, Delhi
2. Ajay Goyal
S/o Sh. Suresh Goyal
R/o H. No. 45D, Jhang Society,
Plot No. 40, Sector13, Rohini
Delhi
3. Amit Gupta
S/o Late Satnarain Gupta
State Vs. Ashwani Aggarwal & Ors. 1 of 175
R/o H. No. B12, Tagore Road
Adarsh Nagar, Delhi
4. Dipit Garg @ Love
S/o Sh. Mahender Garg
R/o H. No. 371, RPS DDA Flats
M.S. Park, Shahdara, Delhi
5. Ramakant Agarwal
S/o Sh. Kamal Kishore Agarwal
R/o Mohalla Civil Lines
PS City Gondia, Distt. Gondia
Maharashtra
6. Deepak Kumar @ Deepu
S/o Sh. Dhani Ram
R/o H. No. 344, street No. 3, Tripuri Town, Patiala, Punjab.
7. Rakesh Oberoi @ Rocky
S/o late Mohinder Pal Oberoi
State Vs. Ashwani Aggarwal & Ors. 2 of 175
R/o H. No. G18/4, Sector15
Rohini, Delhi
8. Ajit Chandila
S/o late Giriraj Chandila
R/o Village Baroli,
PS Sector8, Faridabad, Haryana
9. Amit Kumar Singh
S/o Sh. Ram Govind Singh
R/o H. No. 38, Hariom Villa
Near Homeopathy College
Bopal, Ahmedabad, Gujarat
10. Chandresh Patel @ Chand
S/o Shiv Lal Patel
R/o Flat No. A401, Sandeep Sarovar
4Bungalow, Andheri West Mumbai
Permanent Resident:
H. No. C345, Vaishali Nagar
Jaipur, Rajasthan
State Vs. Ashwani Aggarwal & Ors. 3 of 175
11. Manan U Bhatt
S/o Sh. Upendra Kumar Bhatt
R/o H. No. 19/136, Azad Apartment2
Himmat Lal Park Road, Ambavadi
Ahmedabad
12. S. Sreesanth
S/o Sh. V. S. Nair
R/o H. No. 18, Orion Building
Skyline Apartments, Edappally
Cochin24
13. Poken Jiju Janardhanan @ Jiju
S/o Sh. P. Janardhanan
R/o Valapandal, PS Kuthuparamba
District Kannur, Kerala
14. Ankeet Anil Chavan
S/o Sh. Anil M. Chavan
State Vs. Ashwani Aggarwal & Ors. 4 of 175
R/o Room no. 2, Ultra Cooperative
Housing Society Chawl,
Dilip Gupte Road, Mahim
Mumbai16
15. Kiran Dhole @ Munna
S/o Sh. Pundlikrao Dhole
R/o Plot No. 31, Rajnagar,
Suranalayout, Katol Road,
Nagpur, Maharashtra
16. Manish Mathukarao Guddewar
S/o Sh. Madhukar Balwant Rao Guddewar
R/o House near old Nagar Parishad Building,
Behind Durga Mata Mandir, PS and District
Gadchiroli, Maharashtra
17. Sunil Pashamlal Bhatia
S/o Sh. Pasham Lal Bhatia
R/o Flat no. 202, Sai Lalita Apartment,
New Colony, Nagpur
State Vs. Ashwani Aggarwal & Ors. 5 of 175
Maharashtra
18. Baburao Yadav
S/o Late Algu Yadav
R/o Plot No. 799, Behind Jaswant
Talkies, Budh Nagar, Indora,
PS Panchpawli, Distt. Nagpur,
Maharashtra
19. Mohammed Yahiya @ Yusuf
S/o Sh. Mohammed Ali
R/o Flat no. 1201, WingG, Green Park
building, Oshiwara, Andheri West,
Mumbai53
20. Babu Sunil Chander Saxena
S/o Sh. Babu Suresh Chander Saxena
R/o Plot no. 34812, Flat no. 203,
BBlock, North Wing, Paragon
Venkatadri Apartment,
Barkatpura, Hyderabad
State Vs. Ashwani Aggarwal & Ors. 6 of 175
21. Syed Durrey Ahmed @ Sohaib
S/o Late Syed Abdul Hafiz
R/o H. No. 187198/D/A/10, Sultan Shahi, Hyderabad, AP.
22. Bhupender Nagar
S/o Rajender Singh Nagar
R/o H. No. YC526, NTPC Society
OMEGA1, Near Pari Chowk
Greater Noida
23. Vikas Chaudhary @ Vicky
S/o Sh. Pradeep Chaudhary
R/o H. No. K22, Naveen Shahdara
Delhi
24. Nitin Jain @ Susu
S/o Sh. Rajeev Jain
R/o H. No. 4/2981, Shalimar Park
New Delhi
State Vs. Ashwani Aggarwal & Ors. 7 of 175
25. Vinod Sharma @ Monu
S/o Sh. Sitaram Sharma
R/o H. No. B62, Gali No. 5,
Kanti Nagar Extension,
Krishna Nagar
Delhi
26. Abhishek Shukla
S/o Sh. Roop Kishore Shukla
R/o Flat no.3, Vabhibari Cooperative
Housing Society no.4, Bunglow, Near
Datta Marg, Church Lane,
Andheri (West), Mumbai.
Permanent resident:
14, D. N. Singh Road,
Near Dena Bank, Bhagalpur City
Distt. Bhagalpur, Bihar
27. Ramesh Vyas
S/o Sh. Bajrang Lal Vyas
State Vs. Ashwani Aggarwal & Ors. 8 of 175
R/o Flat no.35, Om Dariya Mahal
80, Napean Sea Road, Mumbai
28. Firoz Farid Ansari
S/o Farid Ansari
R/o 105, Shankar Building Room No.3335,
Jai Raj Bahai Lane, Shuklaji Street,
Nagpada, Mumbai.
29. Jitender Kumar Jain @ Jeetu Tharad
S/0 Late Ghever Chand Jain
R/o H.No.1240, Shamalani Pole,
Raipur, Ahmedabad, Gujarat.
30. Chandra Prakash Jain @
Chandresh Jain @ Jupiter
S/o Uttam Jain,
R/o 2221, Maniharan k rasta,
Missonpole Bazar, Jaipur, Rajasthan.
State Vs. Ashwani Aggarwal & Ors. 9 of 175
31. Harvinder Singh Batra,
S/o Late Shri Gurbaksh Singh Batra,
R/o 38/C, MIG Flats, Rajouri Garden, New Delhi.
32. Aman Sachdeva,
S/o Sh. Somnath Sachdeva,
R/o 29/2, Indira Vikas Colony,
near Nirankari Colony, Kingsway Camp,
New Delhi.
33. Mohd. Shakil Amir
S/o Mohd. Azam,
R/o Plot no. 298, MLA Colony,
Road no. 12, Banjara Hill,
Hydrabad and Vill. Bodhan,
District Nizamabad, A.P.
34. Amit Kishorchand Jisnani,
S/o Sh. Kishorchand Jisnani,
R/o 76, C/o Bank to Ranapratap Chowk,
State Vs. Ashwani Aggarwal & Ors. 10 of 175
Mangalwari Peth, Town & Police Station Umrer,
District Nagpur, Maharashtra441203.
35.Sanjay Aggarwal @ Chotu Nagpur,
S/o Gauri Shankar Aggarwal,
R/o Flat no. 101, Om Mansion158,
New Ramdas, Peth behind Central Point,
Nagpur, Maharashtra.
36. Praveen Kumarji Thakkar @ Pintoo
S/o Ganesh Bhai,
R/o 29, Sheesh Bungalow,
ATTA Pattan District, Pattan, Gujarat. ....Accused persons
APPEARANCES
Present: Sh. Rajiv Mohan, Ld. Special PP for the
State.
IO Addl. DCP Manishi Chandra alongwith
Insp. Kailash Bisht and SI Ravinder Tyagi.
Ms. Manisha Bhandari, Sh. Omkar
Shrivastava, Divyadeep Chaturvedi, Ld.
State Vs. Ashwani Aggarwal & Ors. 11 of 175
Counsel for accused Ashwani
Aggarwal and accused Ramakant
Aggarwal.
Sh. Sushil Bajaj and Sh. Bhavook Chauhan,
Ld. Counsel for accused Ajay Goyal, Amit
Gupta and Dipit Garg.
Ld. Counsel, Sh. Sanjeev and Ram Kamal
for accused Deepak Kumar and Rakesh Oberoi
@ Rocky.
Sh. Rakesh Kumar, Sh. Aditya Nayyar and
Sh. Promod Kumar Sachdeva, Ld. Counsels for
accused Ajit Chandila.
Sh. Sh. Amitab Narender., Ld. Counsel for
accused Amit Kumar Singh.
Sh. R.P. Vyas, Ld. Counsel for accused
Chandresh Patel.
Sh. B. Mishra and Sh. R.K Mishra, Ld.
Counsels for accused Manan Bhatt.
Ms. Rebecca John, Senior Advocate along
with Sh. Vishal Gosain, Sh. Kushdeep Gaur and
Sh. Harsh Bora, Ld. Counsels for accused S.
Sreesanth.
Sh. Parveen Narang, Sh. Shivam T. and Sh.
Anish Dhingra, Ld. Counsels for accused Poken
Jiju Janardhanan.
State Vs. Ashwani Aggarwal & Ors. 12 of 175
Sh. Kishore Gayakward and Sh. Santosh
Chavihaa, Ld. Counsels for accused Ankeet
Chavan.
Sh. J.P. Sharma, Ld. Counsel for accused
Kiran Dhole.
Sh. Alok Singh, Ld. Counsel for accused
Manish Mathukarao.
Sh. Vibhor Vardhan, Ld. Counsels for
accused Baburao Yadav, Mohammed Yahiya &
Babu Sunil Chander Saxena.
Sh. Aditya Nayyar, Ld. Counsel for accused
Syed Durrey Ahmed.
Sh. Nikil Mehta, Ld. Counsel for accused
Bhupender Nagar
Sh. Nikil Mehta, Ld. Counsel for accused
Vikas Chaudhary & Vinod Sharma.
Sh. Sanjay Gautam, Ld. Counsel for
accused Abhishek Shukla.
Sh. Puneet Relan, Ld. Counsel for accused
Ramesh Vyas.
Sh. Dixit and Meenu Pandey, Ld. Counsels
for accused Firoz Farid Ansari.
Sh. Puneet Relan, Ld. Counsel for accused
Jitendra Kumar Jain.
Sh. R.K.Thakur, Ld. Counsel for accused
Chandra Prakash Jain.
Sh. P.K.Wadhwa, Ld. Counsel for accused
Harvinder Singh Batra.
State Vs. Ashwani Aggarwal & Ors. 13 of 175
Sh. Manish Arora, Ld. Counsel for accused
Aman Sachdeva.
Sh. Aditya Nayyar, Ld. Counsel accused
Mohd Shakil Amir.
Sh. Sandeep Tyagi, Ld. Counsel for accused
Amit Kishorchand Jisnani.
Sh. Atul Pandy and Neeraj Kumar, Ld.
Counsels for accused Sanjay Aggarwal.
Ld. Counsel Sh. Bhalendu Mishra, Ld.
Counsel for accused Praveen Kumar .G.
Thakkar.
Sh. Nikhil Mehta, Ld. Counsel for accused
Nitin Jain.
ORDER ON CHARGE :
A charge sheet u/s 419/420/120B IPC and section 3/4 of
Maharashtra Control of Organized Crime Act (MCOCA) was filed
against 42 accused persons. Three accused namely, Dawood
Ibrahim, Chota Shakeel and Sandeep @ Sandi have been declared
Proclaimed Offenders while three accused Javed Chutani, Salman
@ Master and Ehteysham are the three Pakistani National against
whom the proceedings are still underway. Out of the remaining 36
accused persons three accused namely, Amit Kishore, Aman,
Harvinder have been charge sheeted only for Section 420/468/471
IPC. Against the remaining 33 accused persons and also 6 not
State Vs. Ashwani Aggarwal & Ors. 14 of 175
arrested accused, the charge sheet has been filed u/s 3 and 4
MCOCA and section 419/420 IPC read with section 120B IPC.
2 Facts in brief, are that the Central Investigating Agency
working under Ministry of Home Affairs shared some secret
information which included certain international cell phone numbers
with the Special Cell. The secret information and the numbers were
considered as suspected on account of being linked to anti
national/terrorist activities. Some of these numbers alongwith
associated / deduced numbers were taken on lawful interception since
the end of February, 2013. The continuous monitoring and follow up of
these international numbers led to discovery of tip of conspiracy which
was being carried out for spot/session fixing in the recently
commenced IPL tournament, 2013.
3 The primary number received as part of secret information was
a Pakistani number +923332064488 which was found to be in touch
with Dubai number +971561363786 which was in turn found to be in
touch with the mobile number which was later ascertained to be the
accused Ashwani Aggarwal @ Tinku Mandi. Several other numbers
of Tinku as mentioned in the charge sheet, were also taken on
State Vs. Ashwani Aggarwal & Ors. 15 of 175
interception. From these intercepted call, it was revealed that Ashwani
Aggarwal was the main Indian conduit on behalf of overseas based
underworld for orchestrating spot/session fixing. He was found to be
in touch with Dr. Javed Chutani @ Doctor who, in turn as per the
confirmation received from Central Investigation Agency, was close
associate of Dawood Ibrahim Kaskar and Shaikh Shakeel @
Shahid Babu Mohiuddin Sheikh @ Chota Shakeel who was
operating in India after Dawood Ibrahim escaped from India after 1993
Mumbai Serial Blast. At present, both Dawood Ibrahim and Chota
Shakeel are learnt to be stationed in Pakistan and have been
operating through their associates in the entire middle and South East
Asian country and are continuing their activities of organized crime
through their hench men and associates based in India.
4 The intercepted calls and technical surveillance of mobile
phones of Tinku revealed that he was in constant touch with two
accused namely, Sunil Bhatia and Kiran Dhole, who were fixers and
were in touch with certain cricketers. In the telephonic intercepted
calls between Javed Chutani and Tinku, name of accused Salman
also perked up in regard to use of net being more safe.
State Vs. Ashwani Aggarwal & Ors. 16 of 175
5 Further investigations and mobile phone intercepts revealed
that accused Sunil Bhatia and Kiran Dhole were in touch with
cricketer Ajit Chandila playing for Rajasthan Royals team in the on
going IPL VI matches through one Manish Guddewar and one Babu
Rao Yadav, both Ranji level cricketers. He was also found to be in
touch with many other fixers/bookies and was receiving handsome
amount in lieu of himself under performing or making other players
under perform as per the biding of bookies which should be termed as
spot/session fixing.
6 Further scrutiny led to the mobile number which was found to
be of Manan, who in turn was in touch with Jiju @ Pokken Jiju
Janardhan, resident of Kerala who was in touch with S. Sreesanth, a
player of Rajasthan Royals team. One Jeetu @ Jitender Kumar
Jain, resident of Ahmedabad who was a financier bookie and fixer,
was found to be linked with Manan and Chand Bhai. Amit Kumar
Singh was also found to be in touch with Jitu, Chand Bhai and
Manan. Ajit Chandila was also found to be in touch with a bookie of
Delhi identified as Bhupender Nagar, who in turn was in touch with
Vicky Chaudhary, Vinod Sharma @ Monu and one Susu @ Nitin
Jain and with Deepak, a bookie of Punjab. This Deepak was linked to
State Vs. Ashwani Aggarwal & Ors. 17 of 175
Rocky @ Raj and one Sandeep Sharma who were found to be
financing fixing/ betting activities of Deepak.
7 On 05.05.2013, a match was played between Rajasthan Royals
and Pune Warriers at Sawai Maan Singh Stadium, Jaipur from 2000
hours onwards. The intercepted calls revealed that Ajit Chandila had
a conversation with Amit Singh who directed him to give away 14+
runs before the second over of his bowling spell, after giving a pre
decided signal. Ajit bowled first over and gave nine runs. In the
second over, Chandila gave away 14 runs but forgot to give pre
decided signal to the fixer accused Manan which made accused
Chandresh Patel upset as they could not book the session, which was
fixed for gains.
8 Likewise, Sreesanth of Rajasthan Royals was found to have
been fixed by Chandresh and Manan through his friend Jiju for
delivery of a fixed performance in the match scheduled for 09.05.2013
between Rajasthan Royals and Kings XI Punjab at Mohali (Punjab), in
lieu of huge amount of money. Amit was found to be a prime facilitator
of the team. Sreesanth gave a pre determined signal by tucking his
hand towel in his trouser at the start of the second over and did
State Vs. Ashwani Aggarwal & Ors. 18 of 175
extended warm up exercises and also made best efforts to give the
desired number of runs.
9 In the cricket match played between Rajasthan Royals and
Mumbai Indian on 15.05.2013, as per the bookies Ankit Chavan give
away 14+ runs in the pre decided over.
10 In the intervening night of 15/16 May, 2013 police team
conducted raid in Delhi and Mumbai. Mumbai Police arrested seven
accused persons namely, Sreesanth, Ankit Chavan, Ajit Chandila,
Amit Kumar Singh, Poken Jiju Janardhan, Manan U Bhatt and
Chandresh Patel. The police team in Delhi apprehended other seven
accused namely, Ashwani Aggarwal, Ajay Goyal, Amit Gupta, Dipit
Garg, Ramakant Aggarwal, Deepak Kumar and Rakesh @ Rocky.
Huge recovery of over 50 mobile phones, 6 laptops, 1 ipad, 1 Dish
TV set top box, 3 internet cards, 3 Wi Fi routers, 2 calculators, 1
multiple mobile charging plastic box, 1 HP printer, 1 tv decodar of set
max, 1 TV decodar of another company, 1 LCD of 40 inches,
handwritten diaries, papers and various other communication material
were recovered from Delhi and Mumbai. On 19.05.2013, in a raid
conducted at Aurangabad, Maharashtra Manish Guddewar and two
State Vs. Ashwani Aggarwal & Ors. 19 of 175
fixers namely, Kiran Dhole and Sunil Bhatia were arrested. On
21.05.2013 Babu Rao, resident of Nagpur, was arrested from Delhi.
11 During the interrogation of accused Chandresh, he revealed
that he alongwith one Amir, had attempted to infiltrate another IPL
team. On the basis of revelation, certain other mobile phones were
recovered from accused Amir. The calls of Amir and his other
associates namely, Mohd. Yahiya were intercepted. On 24.05.2013,
accused Mohd. Yahiya, resident of Hyderabad was arrested from
Mumbai. On 26.05.2013, accused Babu Sunil Chander Saxena was
arrested from Hyderabad. Accused Syed Durrey Ahmed was
arrested on 27.05.2013. Accused Bhupender was arrested on
27.05.2013 from Delhi.
12 On 01.06.2013, it was revealed that the mobile phone no.
923332064488 belongs to Dawood Ibrahim Chota Shakil and
accordingly, an approval under Section 23 (1) MCOCA was granted
by the Joint Commissioner of Police, Special Cell vide order dated
03.06.2013. Accordingly, Section 3 and 4 of MCOCA was added.
13 On 08.06.2013 the investigation revealed that accused
State Vs. Ashwani Aggarwal & Ors. 20 of 175
Ramesh Bajranglal, a major bookie was closely associated with
syndicate of Dawood. He was arrested in this case on 08.06.2013.
Accused Firoz Farid Ansari, another close associate of accused
Dawood was arrested on 11.06.2013 from Mumbai. He was found to
be in touch with Salman @ Master, a Pakistan based member of
Dawood Chota Shakil syndicate. One more fixer / member of this
syndicate namely, Jitender Kumar Jain was arrested from
Ahmedabad on 27.06.2013.
14 It was thus submitted in the charge sheet, that the
investigations have revealed the spot/session fixing activities that
were going on in an organized manner. Large number of people were
placing the bet with mega bookies and their associates resulting in
generation of money on daily basis. The settlement of account was
allegedly being done through Hawala channels. It was further
submitted that the network of these activities that was spread over in
Delhi and other places in India, was being organized by Dawood
Ibrahim syndicate and there are four cases registered against
accused Chota Shakil in which accused Chota Shakil is one of the
wanted accused. All these cases related to offences which are
cognizable in nature and having punishment of three years and
State Vs. Ashwani Aggarwal & Ors. 21 of 175
above. The cognizance has been taken by the court of competent
jurisdiction in more than one case in the preceding ten years.
15 Accused Dawood has been declared as international terrorist
and is facing stringent sanctions by UN Security Council. A chart
annexed herewith has been filed to show the linkages between all the
accused with Dawood Ibrahim and Chotta Shakeel.
State Vs. Ashwani Aggarwal & Ors. 22 of 175
16 The charge sheet was filed in the court on 30.07.2013.
Documents were supplied to all the accused under Section 207
Cr.P.C.
17 Detailed arguments have been addressed by Ld. Special PP
Sh. Rajiv Mohan and by respective Ld. Counsel on behalf of all the
accused persons.
ARGUMENTS ON BEHALF OF STATE
18 The main argument addressed by Ld. Special PP was from
the statement of objects of the Act, it is evident that the present legal
and adjudicatory system was found incapable of curbing and
controlling the menace of organized crime. Therefore, MCOCA was
enacted to make the offence of "organized crime" punishable. An
individual can fall within the scope of MCOCA when he is acting either
singly or jointly as a member of the syndicate. Any unlawful activity
which is committed in an organized manner to generate wealth or to
get undue economic advantage would fall within the scope of this Act.
There is clear evidence by virtue of intercepted calls and other
recoveries made from various accused coupled with confession of
various accused u/s 18 of MCOCA which are pre se admissible, which
prima facie establish the conspiracy and also the money flow and
State Vs. Ashwani Aggarwal & Ors. 23 of 175
settlement of the money generated by betting in an organized manner.
Reliance has been placed on the observations made by the Apex
Court in the case of State of Maharashtra v. V. Vishwanath Marana
Shetty wherein the bail was rejected solely on the grounds of
existence of evidence in the form of CDR connectivity, confessional
statements of coaccused and other evidence.
19 It has been argued that it is not essential that there should be
atleast two FIR in the preceding 10 years against each of the
accused. Two FIRs against any member of the organized syndicate is
sufficient for invoking the provision of MCOCA, if it is established that
they are the members of organized crime syndicate. For this Ld.
Counsel has relied upon Govind Sakharam Dubey v. State of
Maharashtra, 2009 all MR (CRI) 1903 (by Bombay High Court). This
aspect is also clear from the definition of "organized crime" because in
this definition it is incorporated that such activity may be pecuniary or
undue economical advantage or other advantage for himself or for the
advantage of any other person. The legislature was careful to include
facilitators, abettors and coconspirators who can be charged for the
offence under section 3 (2) of MCOCA, though they may not have
participated in actual commission of crime. For this reliance has been
State Vs. Ashwani Aggarwal & Ors. 24 of 175
placed on Mohd. Farrukh Abdul Gaffur and Ors. v. State of
Maharashtra, JT 2009 (II) SC 47 and Manoj Ramesh Mehta v. State
of Maharashtra, Crl. Appeal No. 1868/2008.
20 Also, Dawood and Chota Shakeel are wanted accused in
different charge sheets filed by the CBI in connection with serial
Mumbai Blasts of 1993. In all these cases, the court of competent
jurisdiction has taken cognizance in last preceding 10 years. Thus, the
activities of DawoodChota Shakeel gang qualify for "continuing
unlawful activity" as defined u/s 2 (d) of the Act. It is submitted that
in furtherance of this continuing unlawful activity, this gang has
committed the present activities which are the subject matter of the
investigations.
21 The core syndicate comprises of Dawood, Chota
Shakeel, Javed Chutani (Dubai), Salman (Pakistan), Firoz
(absconding), Ashwani Aggarwal @ Tinku, Ramesh Vyas, Sanjay
Aggarwal @ Chhotta Nagpur, Sunil Bhatia, Jitender Jain @ Jeetu and
Chandresh Jain @ Jupiter.
22 It is argued that the intercepted calls clearly show that
State Vs. Ashwani Aggarwal & Ors. 25 of 175
there exists a crime syndicate and all the accused members are
involved in the organized crime.
23 The next argument is that it is not necessary that the
said criminal cases registered against the accused must be in regard
to similar offences. It was argued that the five cases registered
against the accused reveal the allegations of contract killing, extortion
and violence.
24 It was argued that various phone calls intercepts and
forensic evidence prima facie shows that it was Jupiter who was in
touch with accused Ashwani Aggarwal, and accused Salman @
Master and Ramesh Vyas have been talking to each other. In turn,
accused Ashwani Aggarwal and Ramesh have been in touch.
Likewise, the nexus between accused Sunil, Kiran, Ashwani and
Ramesh Vyas is also established from the evidence on record.
Accused Dawood, Chota Shakil, Javed, Salman, Firoz Farid Ansari,
Ashwani Aggarwal, Ramesh Vyas, Sanjay, Sunil, Chandresh and
Jitender have been shown to form the inner core syndicate of which
the other accused are members.
State Vs. Ashwani Aggarwal & Ors. 26 of 175
25 It is thus, argued that there is sufficient material on
record to prima facie make out a case u/s 3 and 4 of MCOCA against
the accused persons.
ARGUMENTS ON BEHALF OF ACCUSED PERSONS
26 The main argument that is being addressed on behalf of all
the accused persons is that the provisions of MCOCA are not
attracted in the present case. It has been argued that the first
requirement is that there must be an "organized crime syndicate".
To qualify as a crime syndicate there has to be atleast two FIRs in
preceding 10 years against the accused who form the part of crime
syndicate. Admittedly, no FIR has ever been registered against any of
the accused except Dawood and Chhota Shakeel. The basic
requirement for invoking MCOCA, itself is not satisfied.
27 Further, the continuing unlawful activity which was allegedly
undertaken by the crime syndicate, which in fact does not exist, is in
regard to "betting" and "match fixing". However, none of the four
FIRs which are allegedly registered against Chhota Shakeel and the
one FIR against Dawood and Chhota Shakeel are in regard to betting
and match fixing.
State Vs. Ashwani Aggarwal & Ors. 27 of 175
28 There is absolutely no nexus that has been established even
prima facie, of any of the accused with this alleged crime syndicate.
Moreover, betting is not an offence except may be under Gambling
Act, but then it is not punishable with a sentence of three years or
more. The offence of gambling does not qualify as a crime in regard to
which MCOCA can be invoked. Moreover, there is no evidence to
show that accused persons were members of this organized crime
syndicate. The entire case of the prosecution even if admitted, does
not prima facie establish that the accused were members of organized
crime syndicate or that they had indulged in continuing unlawful
activities of an offence which is punishable with a sentence of three
years. It is thus, argued that no case u/s MCOCA is made out against
any of the accused.
29 It has been further argued at length by Ld. Counsel for each of
the accused that even the individual role that has been assigned to
each of the accused, also does not prima facie establish that they
were part of the organized crime syndicate or that they had committed
any offence for which charges can be leveled against them. The detail
arguments as addressed by all the counsels in this regard shall be
State Vs. Ashwani Aggarwal & Ors. 28 of 175
considered in due course.
30 I have heard the arugments and perused the written arguments
and also the record. My observations are as under:
31 This is a case which raises serious concerns about
the rampant rot that has set in sports, especially the commercial
sports and the adequacy of existing Laws to deal effectively with
the prevailing situation in the world of sports. As per the
prosecution, there exists a core crime syndicate of underworld
don Dawood Ibrahim, Chhota Shakeel, Salman, Ehteshyam who
are indulging in crimes of violence, extortion, boot legging,
money laundering, etc. in an organized manner. This core group
through Dr. Javed Chutani is in contact with Mega bookies
namely, Ashwani Aggarwal, Ramesh Vyas, Firoz Farid Ansari,
Jitender Jain and Chandresh Jain @ Jupiter. Kiran Dhole and
Sunil Bhatia are the associates of Ashwani Aggarwal who have
been working as conduits to approach cricket players namely,
Ajit Chandila, Ankit Chavan and Sreesanth through their friends
Jitu Janardhan, Abhishek Shukla and Manan U. Bhatt. Other
persons involved as associates are Babu Rao Yadav, Vikas
State Vs. Ashwani Aggarwal & Ors. 29 of 175
Choudhary, Nitin Jain and Vinod Sharma. Broadly speaking, the
categories of people involved in this syndicate are:
(1) Core Syndicate ;
(2) Mega Bookies ;
(3) The conduits and associates ; and
(4) Compromised players.
32 What is to be considered at this stage is whtehr the
prosecution has been able to establish a prima facie case against the
accused persons under MCOCA and other Acts.
33 While exercising powers under Section 227 of the Code of
Criminal Procedure, for considering the question of framing of
charge, the Court undoubtedly has power to sift and weight the
evidence for the limited purpose of finding out whether or not a
primafacie case against the accused has been made out. If the
material placed before the Court discloses grave suspicion against the
accused, then the Court would be fully justified in framing charge and
proceeding with the trial. It was noted in the case of Union of
India vs. Prafull Kumar 1979 SCC (Criminal) 609 that the Court
cannot act merely as a post office or a mouth piece of the prosecution
but has to consider the broad probabilities of the case, the total effect
of the evidence and the documents produced before the Court, but it
should not make a roving inquiry into the pros and cons of the matter
and weigh the matter as if it is conducting the trial.
State Vs. Ashwani Aggarwal & Ors. 30 of 175
34 Apex Court in the case of Sajan Kumar Vs. CBI (9) SCC
368 laid down the principles for consideration of charge. It was
observed that the test to determine the prima facie case would
depend upon the facts of each case. Where the material placed
before the Court discloses grave suspicion, the Court would be fully
justified in framing the charge and proceeding with the trial. Before
framing the charge, the court must apply its judicial mind on the
material placed on record to satisfy that the commission of offence by
the accused was possible. Further, if two views are possible and one
of them gives rise to suspicion only as distinguished from grave
suspicion, the trial Court would be justified to discharge the accused.
At this stage he is not to see whether the trial would end in conviction
or acquittal.
State Vs. Ashwani Aggarwal & Ors. 31 of 175
35 In the case of Govind Sakharam Ubhe v. State of
Maharashtra, Crl. Appeal no. 18 of 2009 decided on 11.06.2009
after considering the various judgments Bombay High Court summed
up the law at the stage of 227 Cr.P.C. It was stated that the case has
to be set aside after shifted the material collected upon the
prosecution that there is ground for presuming that the accused has
committed the offence or that there is not sufficient ground for
proceeding against him. The inquiry must not be directed to find out
whether the case will end in conviction. Though roping is not
permissible but the court has to consider whether the material
collected if accepted as it is without being subjected to cross
examination would give rise to strong and grave presumption about
the commission of offence by the accused. However, if the scale as to
the guilt and innocence of the accused are found then the court must
proceed with framing of charge. There is no question of giving benefit
of doubt to the accused at this stage and to discharge him. This can
be done only at the conclusion of trial but if two views are possible
and the court is satisfy with the evidence gives rise to some suspicion
but not grave suspicion it would be well within the right to discharge
the accused.
36 In the light of these principles, the material on record has to be
considered to see if it gives rise to grave suspicion of the offence as
defined in MCOCA, being committed by the accused persons.
37 Before considering the case on merits, it would be worth while
to refer to the relevant provision of the Act.
State Vs. Ashwani Aggarwal & Ors. 32 of 175
38 MCOCA was enacted to make special provision for prevention
and control and for coping with criminal activity of an organized crime
syndicate and gang and for the matters connected therewith or
incidental thereto. The Statement of Object and Reasons for
enacting this Act gives an important insight to assess the intention of
legislature for making this enactment. It was stated that organized
crime has become a serious threat to the society in the last few years.
This crime has no national boundary and was fueled by illegal wealth
generated by contract killing, extortion, smuggling in contrabands,
illegal trade and narcotics, kidnappings for ransom, collection of
protection money and money laundering, etc. The proportion of
amount so generated was so huge that it had serious adverse effect
on the economy. It was seen that these organized crime syndicates
made a common cause with terrorist gangs and fostered terrorism
which extended beyond national boundaries. The existing legal frame
work was found to be rather inadequate to curb or control the menace
of organized crime. Therefore, it was decided that a special law with
stringent and deterrent provisions to be enacted to control the menace
of the organized crime.
39 Under this Act, it is the membership of a organized crime
syndicate which has been made punishable independent of the
offence that may be committed by the accused singly or jointly as a
member of the organized crime syndicate. The provisions of the Act
are significant to deprive a person of his right of claim at a very initial
stage of investigation making it extremely difficult for him to even
obtain bail. Other provisions relating to admission of offence collected
through electronic media has also been provided. It was observed in
State Vs. Ashwani Aggarwal & Ors. 33 of 175
the case of Praful Patel and Lalit Som Nagpal that while interpreting
the provisions regard must be had that the prosecution must be able
to make it a clear primafacie case against the accused persons for
continuation of the trial.
40 Section 3 Sub Section (i) provides for punishment for
organized crime.
41 The term "organized crime syndicate" is defined under
Section 2(f) as under:
"A group of two or more person who, acting either singly or
collectively, as a syndicate or a gang indulging in activities of
organized crime".
42 Therefore, organized crime syndicate means a group of two or
more persons acting either singly or collectively, as a syndicate or
gang indulging in activities of organized crime.
43 "Organized crime" is defined under Section 2 (e) as under :
"organized crime" means any continuing unlawful activity by
an individual, singly or jointly, either as a member of an organized
crime syndicate or on behalf of such syndicate, by use of
violence or threat of violence or intimidation or coercion, or other
unlawful means, with the objective of gaining pecuniary benefits, or
gaining undue economic or other advantage for himself or any other
person or promoting insurgency;"
The essential ingredients of the organized crime are that there
is (i) continuing unlawful activity, (ii) by an individual, singly or jointly,
either as a member of an organized crime syndicate or on behalf of
State Vs. Ashwani Aggarwal & Ors. 34 of 175
such syndicate, (iii) by use of violence or threat of violence or
intimidation or coercion, or other unlawful means, (iv) with the
objective of gaining pecuniary benefits for himself or any other person
or promoting insurgency.
44 The term "continuing unlawful activity" has been defined
under Section 1(d) which reads as under:
"An activity which is prohibited by law and is a cognizable
offence punishable with three or more years is undertaken either
singly or jointly, as a member of organized crime syndicate in respect
of which more than one charge sheet has been field before the Court
of competent jurisdiction within the preceding period of ten years and
that court has taken cognizance of such offence".
45 The essential ingredients of continuing unlawful activity, are (i)
the act is prohibited by law for the time being in force which is a
cognizable offence punishable with imprisonment of three years or
more, (ii) undertaken either singly or jointly, as a member of an
organized crime syndicate or on behalf of such syndicate, (iii) in
respect of which more than one chargesheets have been filed before
a competent Court within the preceding period of ten years and (iv)
Court has taken cognizance.
Organized Crime Syndicate
46 The first aspect which needs to be ascertained is whether the
prosecution has been able to show the existence of an "organized
crime syndicate". The case of the prosecution is that Dawood
Ibrahim, Chotta Shakeel syndicate for over last thirty years have been
indulging in crimes of various sophistication and gravement in pursuit
of earning illegitimate wealth. From petty beginnings as smugglers of
State Vs. Ashwani Aggarwal & Ors. 35 of 175
regulated articles by avoiding customs duty to total domination of the
contract killing/protection money underbelly to manufacture/trade of
narcotics and fake currency and finally to the gravest crime of
financing and executing terrorism, this syndicate has developed vast
and deep interests in the real estate and construction activities not
only in India but across many South/South East and Mid West Asian
countries. This syndicate has attended further diversification of their
illicit activities to the field of cricket as it is a huge money churner,
legally as well as illegally in terms of the then existing unorganized
betting markets spread across India. The entry of this syndicate in
this fixing and betting market was felt with the integration of Indian
local betting markets with their Pakistan and Dubai based
counterparts. This integration of markets along with streamlining of
money transfers through Hawala and certainty of settlements by
muscle power opened up a huge avenue of making windfall gains by
this syndicate. It has been thus, concluded that the prime movers of
this organized crime syndicate are Dawood Ibrahim and Chotta
Shakeel.
47 The prosecution has claimed that on the basis of telephonic
intercepts between players and fixers which established the
conspiracy for unlawful activity between the compromised players and
major bookies, the FIR in the present case was registered on
09.05.2013. The primary number that was received as part of secret
information was +923332064488, a Pakistani mobile number. It was
found that this number was in touch with a Dubai number
+971561363786. The Central Intelligence Agency has confirmed in
their report placed on record in sealed cover that telephone No.
State Vs. Ashwani Aggarwal & Ors. 36 of 175
+923332064488 is being used by Dawood Ibrahim and Chotta
Shakeel. It was also found that during the conversation, two persons
were found talking to Dawood Ibrahim and Chotta Shakeel by using a
Dubai number 971504560616 and one of them introduced the other as
Javed Chutani. Further, on the scrutiny of mobile number
923332064488 (which was identified to be used by Dawood Ibrahim
and Chotta Shakeel) it was found to be in touch with mobile number
971561363786 which was claimed to be that of "Javed Chutani".
48 The case of the prosecution, therefore, is that the organized
crime syndicate is that of Dawood Ibrahim and Chotta Shakeel of
which all the other accused are the members.
49 The crime syndicate is traced to mobile number
923332064488, a Pakintani number which according to prosecution
has been disclosed by CIA to be used by Dawood and Chotta Sha
keel. It has been further claimed by the prosecution that there was no
record available, but with great difficulty they have been able to trace
out a witness who has identified the voice on the said mobile number
to be that of Dawood Ibrahim. The significant thing to note is that ac
cording to the prosecution this Pakistani number was being used by
Dawood Ibrahim (who is based in Pakistan) and by Chotta Shakeel
(who is based in Dubai). It is difficult to comprehend as to how the
same mobile number was being used by two person who were placed
in different countries.
50 It was argued that there was international roaming on this
number and it was being taken by the concerned person with him
State Vs. Ashwani Aggarwal & Ors. 37 of 175
while traveling to Dubai. It is a far fetched conclusion that has been
drawn as there is not an iota of admissible evidence to show that the
said mobile number was being used by Dawood Ibrahim and Chotta
Shakeel. It is significant to note that admittedly Chotta Shakeel has
not been identified to be talking on this number to either Dawood
Ibrahim or to any of the other accused who are claimed to be the
members of the crime syndicate. There is complete absence of any
evidence whatsoever to show that this number was allegedly ever
used by Chhota Shakeel.
51 The second aspect which is claimed by the prosecution is that
while talking on mobile number 923332064488 with the intercepted
call on number 971504560616 on 26.03.2013, the person on the other
side had made one person talk to another person placed in Pakistan,
by addressing him as "Chutani". The search was made and it was
found that Javed Chutani @ Doctor was the subscriber of phone
number 971561363786 and he was based in Dubai. There is again
not an iota of evidence except conjectural conclusion of the
prosecution to claim that Javed Chutani is the subscriber of this
mobile or has been using this mobile number.
52 The prosecution has then asserted that there have been
frequent calls between mobile number 971561363786 which is
claimed to be used by Javed Chutani and mobile numbers of accused
Ashwani Aggarwal. Further, the CFSL report has conclusively
established that the person who had talked as Chutani on Pakistani
mobile number 923332064488 (used by Dawood Chhota Shakeel)
and the person who had been in touch with accused Ashwani
State Vs. Ashwani Aggarwal & Ors. 38 of 175
Aggarwal was one and the same person. Significantly, there is no
evidence to show that 971561363786 mobile number had either been
subscribed or was being used by the accused who has been named
as Doctor Javed Chutani. The only basis for concluding this is that in
the first call from the Pakistani number, the third person who had
talked in between was introduced as Javed Chutani and his voice
matched with the person talking on the mobile number with Ashwani
Aggarwal. The person who was using mobile number 971561363786
(claimed to be Javed Chutani) may have been constantly in touch with
many Indian members including that of Ashish Agarwal @ Tinku
Mandi, but that does not show that it was accused Javed Chutani who
had been making those calls.
53 It is pertinent to mention that as per the prosecution, the link
btween Dawood Ibrahim and Chotta Shakeel, the prime crime
syndicate and that with the other bookies was this Javed Chutani.
However, there is no evidence to establish the identity of Javed
Chutani and he has not even been arrested in this case. Also, there is
nothing on record to show that Javed Chutani was a member of the
organized crime syndicate of Dawood Ibrahim and Chotta Shakeel.
There is only one conversation of 26.03.2013 between the alleged
number of Dawood Ibrahim and another number of Dubai in which
one person who was addressed as Javed Chutani, had a
conversation. The entire conversation as intercepted on the said day
has been reproduced, but from the said conversation no inference
whatsoever can be drawn that Javed Chutani was a member of
organized crime syndicate. An innocuous interjection cannot be
sufficient to conclude that this Javed Chutani was a partner in crime
State Vs. Ashwani Aggarwal & Ors. 39 of 175
with DawoodChhota Shakeel. Admittedly, there is no FIR registered
against Javed Chutani, what to talk of preceding ten years. There is
not an iota of evidence on record to show that Javed Chutani was a
member of organized crime syndicate of Dawood Ibrahim and Chotta
Shakeel. None of the other accused are claimed to be in direct or
indirect touch with Dawood Ibrahim and Chotta Shakeel. Once the
only link between Dawood Ibrahim and Chotta Shakeel and other
accused is not established, it cannot be said that whatever the
activities that were being carried by all other accused, was as part of
organized crime syndicate.
More than one FIR in preceding ten years
54 The other requirement for establishing the offence punishable
under Section 3 of MCOCA is that the said "organized crime
syndicate" must be involved in "continuing unlawful activity".
55 In order to qualify as "continuing unlawful activity" as defined
under section 2 (1) (d) of the Act, the following requirements need to
be satisfied
a) that this is an activity prohibited by law, which is a cognizable of
fence punishable with imprisonment of three years or more un
dertaken, either singly or jointly as a member of an organized
crime syndicate or on behalf of such syndicate and:
State Vs. Ashwani Aggarwal & Ors. 40 of 175
b) In respect of it more than one charge sheet must have been filed
before a competent court within, the preceding period of 10
years and that court has taken cognizance of such offence.
56 In the case of Ranjeet Singh Brahmjeet Singh
Sharma vs. State of Maharashtra 2005 5 SCC 294, it was ob
served that in order to constitute continuing unlawful activity, more than one
charge sheet alleging commission of cognizable offence punishable with
imprisonment of three years or more has been filed in respect of the al
leged unlawful activity undertaken either singly or jointly. In Prafull vs.
State of Maharashtra (Crl.) 870 the Bombay High Court has observed
that though the definition are intertwined in a cyclic manner, but they are
clear and unambiguous and it would follow that each ingredient of the
definition would have to be proved. It was further noted that mere proof
of filing charge sheet in the past is not enough. It is only one of the requi
site for constituting evidence of organized crime. If only the past charge
sheet were sufficient to constitute an offence of organized crime, then it
would have violated the mandate of Article 21 of the Constitution. It is not a
matter simply of an arithmatical equation. If unless the allegations of the
aforesaid charge sheet point out that the offence was committed by the ac
cused in the capacity of a member of organized crime syndicate, the provi
sions of MCOCA cannot be invoked. To put it differently, the said allega
State Vs. Ashwani Aggarwal & Ors. 41 of 175
tions would not satisfy the requirement contemplated by the expression
"continuing unlawful activity".
57 In the case of Jai Singh v. State of Maharashtra, 2003
(3) Maharashtra LJ 866 it was observed that there is lot of difference be
tween the act or activity itself being termed or called as an offence under
statute or such act or activity being taken into consideration as one of the
requisite for taking action under the statute. The former situation has to sat
isfy the mandate under Article 20 (1) of the Constitution; in case of latter sit
uation, it stands on totally different footing. For the purpose of organized
crime there has to be a continuing unlawful activity. This cannot be so un
less atleast two charge sheets are found to be lodged in relation to an of
fence punishable with three years imprisonment during the period of 10
years.
58 The issue that is thus, required to be examined is whether there
exist two FIRs in the preceding 10 years in respect of the crime syndicate.
The first aspect which needs to be considered is whether as per the defini
tion, 2 FIRs in the preceding 10 years is required to be registered against
each member of the crime syndicate or whether the said 2 FIR's against
the organized crime syndicate would meet this requirement.
State Vs. Ashwani Aggarwal & Ors. 42 of 175
59 This aspect was considered in detail in the case of Govind
Sakha Ram Ubhe vs State of Maharashtra, Criminal Appeal no. 18/2009,
decided on 11 June, 2009, by Division bench of Bombay High Court. It
was observed that the term used in this definition is "in respect of which
more than one charge sheet has been filed" . This does not refer to each
member of crime syndicate, for in that case the words would have read as
"in respect of whom" more than one charge sheet has been filed. It was
further observed that the members of crime syndicate operate either singly
or jointly in the commission of organized crime. They operate in different
modules. A person may be a part of a module which jointly undertakes with
joint crime or he is singly as a member of organized crime or on behalf of
such syndicate, takes part. In both the situations, MCOCA would apply.
Section 3 of Act ropes a person who as a member of organized crime syn
dicate, commits crime I.e acts of extortion by giving threats etc. to gain eco
nomic advantage or gain supremacy as a member of crime syndicate, ei
ther singly or jointly. The charge sheet is in respect of organized crime syn
dicate. It was therefore, noted that if within the period of preceding 10
years, more than one charge sheet has been filed in respect of organized
crime committed by the members of that particular crime syndicate, the
said charge sheet had to be taken against each member of the said crime
syndicate for the purpose of application of Act against him, even if he is in
State Vs. Ashwani Aggarwal & Ors. 43 of 175
volved in one case. The organized crime committed by him will be part of
the continuing unlawful activity of the organized crime syndicate. What is
important is the nexus or the link of the person with the organized crime
syndicate. This link is the crux of the term unlawful activity and if it is
not established such person cannot be roped in.
60 In the case of Govind Sakha Ram (supra), there was no pre
ceding FIR against the appellant, except the FIR in which MCOCA was in
voked against him. On these facts, it was concluded that even though there
was no preceding FIR against this appellant, but he could still be charged
with MCOCA if it could be shown that there were 2 FIRs in preceding 10
years against the organized crime syndicate, of which he was a part.
61 Therefore, in order to judge if there was any continuing unlawful
activity by the organized crime syndicate, what is required to be considered
is whether there are two FIRs in the preceding 10 years against the crime
syndicate.
62 The primary crime syndicate is claimed to be of Dawood and
Chota shakeel. As per the prosecution the FIRs registered against them
are as follows -
Against accused Dawood Ibrahim and Chhota Shakeel
Sl. FIR No. Section Name of the Accused Persons Date of
State Vs. Ashwani Aggarwal & Ors. 44 of 175
No. & PS cognizance
1 FIR No. Chota Shakeel and Dawood Ibrahm Not known
20/03 syndicate alongwith 9 other accused.
PS Both in column 12 and have not charge
Brihan sheeted since they were absconding.
Mumbai
Against accused Chhota Shakeel
State Vs. Ashwani Aggarwal & Ors. 45 of 175
S FIR NO. & SECTIO NAME OF THE Date of cognizance
I PS N ACCUSED in the court
N PERSONS
o
.
1 FIR No. Section Accused Chhota Not known . 387/34 Shakeel in column 58/2006, IPC r/w no. 12 and not section charge sheeted as PS DCB 3 (1) (i), absconding. 3 (2), 3 CID, (4) Six other accused MCOCA persons charge Mumbai sheeted and four not charge sheeted 2 FIR No. Section3 Chhota Shakeel in . 03/2007; 02/115/3 column no. 12 as PS : DCB 87/34 absconding CID IPC r/w Mumbai section 3 (1) (i), 3 (2), 3 (4) MCOCA Act 3 FIR No. Section Chargesheeted nine . 90/2010 PS 302/34 accused persons but : DCB CID IPC r/w no charge sheet Mumbai section against accused 120B Chhota Shakeel as IPC r/w absconding and section placed in column 3/ 25/ 27 no.12 Arms Act r/w section 3 (1) (i), 3 (2), 3 (4) State Vs. Ashwani Aggarwal & Ors. 46 of 175 MCOCA 4 FIR No. Section Accused Chhota . 32/2009 186/353/ Shakeel not charge PS Special 307/120 sheeted as Cell, Delhi B IPC absconding and r/w placed in column no. section 12. Other accused 25/27 were charge Arms sheeted. Act 63 The bare perusal of above mentioned FIR would show that
there is only one FIR no. 20/03 which is against Dawood and Chhota Sha keel which is relied upon by the prosecution to claim that they formed a crime syndicate and committed crimes with other accused persons. The re quirement of law is that the FIR should be filed within the preceding 10 years in order to constitute "continuing unlawful activity". The order of the court taking cognizance on this FIR has not been placed on record. Only an order of sanction under the MCOCA has been placed. Its perusal shows that the first sanction against a set of accused was given on 12.03.2003 and subsequent sanctions were given against the other accused from time to time and the last sanction against the set of accused who were arrested subsequently was granted by Commissioner of Police, Brehan on 16 Octo ber 2004. From this order of sanction under Section 23(2) it can be made out that this FIR would have been filed in the Court sometime in March/April 2003. Though this is conjectural, but in the absence of certified State Vs. Ashwani Aggarwal & Ors. 47 of 175 copy of the order of the court showing the date on which cognizance has been taken it can only be presumed that it may have been filed in March or April, 2003. The FIR in the present case has been registered on 19 May 2013 which is beyond the period of 10 years. This FIR which is the only FIR which has arrayed Chota Shakeel and Dawood as part of crime syndicate, is beyond the period of 10 years and cannot be considered as one of the FIR's against the organized crime syndicate.
64 The other four FIR's are against Chota Shakeel and his other gang members. All these FIRs pertain to murder, extortion, threat, but in none of these FIRs it has been alleged that Chota Shakeel was alleged to be involved in those offences as part of crime syndicate headed by Da wood. Rather, from the perusal of the FIRs and the charge sheets what emerges is that Chota Shakeel was the don and was running the indepen dent crime syndicate along with other accused mentioned in those FIR. In none of these cases he has been shown as a part of crime syndicate with Dawood Abrahim.
65 Section 2 (1) (f) provides that an organized crime syndicate would mean a group of two or more persons. In the present case, there are no two FIR's against the crime syndicate of Dawood Chota Shakeel.
State Vs. Ashwani Aggarwal & Ors. 48 of 175 66 The connection between Chota Shakeel and Dawood was
sought to be established from FIR no. 20/03 but that FIR is not within the period of preceding 10 years. The other four FIRs are against Chhota Sha keel and others and in none of these FIRs, he has been shown to be a member or associate of Dawood Ibrahim. Thus, the prosecution has failed to satisfy the requirement of there being more than one FIR against the crime syndicate in the preceding 10 years.
Cognizance by the court 67 Another connected aspect which needs to be dwelled upon is that in none of the above mentioned FIR's, the accused Dawood and Chota Shakeel have been charge sheeted. In all these cases, they have not been arrested as they were absconding and have been shown in column no. 12 of the charge sheet. Whether in this given situation, it can be said that the charge sheet has been filed against them and cognizance has been taken by court of competent jurisdiction, which is the essential requirement of Section 2(1)(e) of the Act.
68 For this, one may refer to section 193 of the Code of Criminal Procedure which provides for "cognizance of offences by courts of ses sion". This section is negatively couched and provides that courts of ses sion can take note of case as the court of original jurisdiction only after State Vs. Ashwani Aggarwal & Ors. 49 of 175 committal order is passed by magistrate under Code of Criminal Procedure.
On the other hand, in section 190(1) (b) the power of magistrate has been stated to mean that he can take cognizance of any offence subject to the fulfillment of requirements given under (a),(b),(c) and no further. What now needs to be examined is what is meant by "cognizance".
69 In Ajit Kumar Palit vs State of West Bengal and other, AIR 1963 SC 765 the three Judges bench of the Apex Court explained that the word cognizance has not esoteric or mystique significance in criminal law or procedure. It merely means to become aware of and when used with ref erence to a court or Judge to take notice of judicially.
70 It was observed in Emperor vs. Sourindra Mohan Chuekorbutty, ILR 37 CAL 412, that taking cognizance does not in volve any formal action; or indeed action of any kind but occurs as soon as Magistrate applies his mind to the suspected commission of an offence.
71 In R.R Chari vs. State of UP, AIR 1951 SC 207, It was noted that word "cognizance" was used in the court to indicate the point when the Magistrate takes judicial notice of an offence.
72 In Fakrudin Ahmed vs. State of Uttranchal and another, (2008) 17 SCC 157, while explaining the term "cognizance", it was ex plained that it is only when the Magistrate applies his mind and is satisfied State Vs. Ashwani Aggarwal & Ors. 50 of 175 that the allegations, if proved, would constitute an offence and decide to ini tiate the proceedings against the alleged offender that it can be positively stated that cognizance is in regard to the offence and not the offender.
73 After making reference to all the aforementioned judgments, the Apex court in the case Prasad Sri Kant Prohit vs State of Maharashtra, in Criminal Appeal no. 19611970 and other appeals arising out of SLP criminal no. 190771 of 2011 decided on 15.04.15, summed up that cog nizance would take place at a point when the Magistrate first takes judicial notice of the offence either on a complaint or a police report or upon infor mation of person other than the police officer. Taking judicial notice is noth ing but perusing the report of the police officer for proceeding further on that report by opening the file and thereafter, taking further steps to ensure the presence of the accused and all other consequential steps at later stage depending upon the nature of offence, or to pass necessary order of committal to court of sessions.
74 The question as to the implication of a supplementary report filed by the investigating agency under section 173 (8) of Cr.P.C. was con sidered in the case of State of West Bengal vs. Salap Service Station and others, 1994 (3) Suppl SIC 318. It was stated that the question of tak ing cognizance does not arise at this stage since cognizance has already been taken on the basis of main charge sheet. All that section 173 (8) State Vs. Ashwani Aggarwal & Ors. 51 of 175 Cr.P.C. lays down is that the investigating agency can carry on further in vestigation in respect of the offence after the report under sub section 2 has been filed. The further investigation may disclose some fresh offences, its connection with the transaction which is subject matter of the earlier re port. Section 173 (8) Cr.P.C. is only to enable the investigating agency to gather further investigation, which cannot be frustrated.
75 In the case of Purohit (Supra), the Apex court thus, noted that the filing of supplementary charge sheet does not and would not amount to taking cognizance by the court afresh against whomsoever with respect to very same offence. By way of supplementary charge sheet some more ac cused may also be added to the offence with respect to which the cog nizance is taken by the judicial Magistrate. Cognizance is taken of the main offence against the accused already arrayed. The supplementary charge sheet may provide scope for taking cognizance of additional charges or against more accused with reference to the offence already taken cog nizance of.
76 This position was clarified in the case of C.R.E.F Finance Limited vs Shri Shanti Homes (Pvt Ltd) and another, 2005 (7) SCC 467, wherein it was again reiterated that cognizance is taken of offence and not the offender and therefore, once the court is satisfied that the complaint discloses the commission of offence and there is no reason to reject the State Vs. Ashwani Aggarwal & Ors. 52 of 175 complaint and proceed further with the matter. The cognizance is thus, taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of offence is disclosed.
77 In the case of Purohit (Supra), it was concluded that if the cognizance of offence is taken by the Magistrate under section 190 Cr.P.C on the main charge sheet, this would satisfy and fulfill the requirement of cognizance of offence by filing of more than one charge sheet before the competent court in preceding 10 years as stipulated under section 2 (1) (d) of MCOCA, even if the accused in question has been named in supplemen tary charge sheet which may be filed after the registration of FIR under MCOCA.
78 In the present case, in none of the FIRs on which the prosecu tion has relied, the accused Dawood or Chota Shakeel had been charge sheeted and have been placed in column no. 12. In the circumstances, there is no charge sheet whatsoever that has been filed against Dawood and /or Chhota Shakeel in any of these cases. But in view of the discussion above, even though in all these cases cognizance had been taken by court of competent jurisdiction of the offence in the charge sheets that were filed against the other accused, but there are in fact, no charge sheets in these FIR's against them wich may be considered to ascertain if the requirement of filing of more than one FIR in preceding 10 years is satisfied. The record State Vs. Ashwani Aggarwal & Ors. 53 of 175 shows that no charge sheet in any of the cases relied upon by the prosecu tion has been filed against Dawood or Chotta Shakeel. Had any Supple mentary charge sheet been filed, it could relate back to the date on which cognizance was taken in main charge sheet. But in the present case, no charge sheet in any of the these cases has been filed by the prosecution against them.
Link or Nexus with Crime Syndicate 79 The question which now calls for attention is whether mere filing of FIR is sufficient or there is more which is required to be established.
80 While considering more than 1 F.I.R in the preceding 10 years what is required for the purpose of satisfying the requirement of continuing un lawful activity, was explained in the case of Lalit Somnath Nagpal (supra) that it would necessarily entail continuous engagement in unlaw ful activity and there has to be a live link between all the different offences.
81 Likewise, in the case of Ranjeet Singh (supra) it was ex plained, that there may or may not be any direct role to play as regards commission of an organized crime, but unless a nexus with the accused who is the member of the organized crime syndicate or an offence in the nature of crime is established, only by showing some alleged indulgence of State Vs. Ashwani Aggarwal & Ors. 54 of 175 the appellant,, he cannot be said to have committed the offence of orga nized crime.
82 In the case of Prasad Sri Kant Purohit (Supra), the Apex court had noted that in order to offence of continuing unlawful activity after the third occurrence, the involvement of the accused must have been as mem ber of the same gang. In other words, even if it was held that member of or ganized crime syndicate singly or jointly participated on behalf of organized crime syndicate with reference to such participation having taken place, what is to be ensured it that in all three cases the same gang I.e. organized crime syndicate must have been involved.
83 In Govind Sakha Ram Ube (supra) it was emphasized that what is important to qualify as continuing unlawful activity on behalf of organized crime syndicate is that, there must be a nexus or link of the ac cused with the organized crime syndicate. In the case of Prafula vs State of Maharashtra, 2009 All LR (Criminal) 870, Bombay High Court, a reference was made to the case of Ranjeet Singh (supra) and it was concluded that mere proof of filing of charge sheet in the past is not enough. It is only one of the requisite for constituting offence of orga nized crime. If only the past charge sheets were to be enough to constitute the offence of crime it would have offended the mandate of Article 20(1) of the Constitution. It is not a matter of simply one of arithmetical equation. A State Vs. Ashwani Aggarwal & Ors. 55 of 175 nexus of the accused with the organized crime syndicate has to be estab lished. If the previous criminal history of accused denotes that they had been charged and tried for those offences separately before competent court, there is no question of such offences constituting the offence of orga nized crime.
84 In State of Maharashtra vs. Rahul Ramchandra Darud, 2011 (SCC) Online Bombay 605, after making a reference to the aforementioned judgments it was concluded that where the nexus of commission of offence by the accused in the capacity of a member of organized crime syndicates is not established, then MCOCA cannot be invoked as it does not satisfy the mandatory requirement contemplated by expression continuing unlaw ful activity.
85 In the present case, though there are 4 charge sheets in the preceding 10 years that have been filed against Chota Shakeel, but none of these charge sheets show that he was a part of this crime syndicate of which Dawood was the Head or a member. Hence, no nexus between Da wood and Chotta Shakeel has been established and thus, FIR against Chotta Shakeel cannot be considered against every member of alleged crime syndicate. The requirement of more than one FIR in the preceding 10 years against "organized crime syndicate" is therefore, not satisfied.
State Vs. Ashwani Aggarwal & Ors. 56 of 175
Territorial Jurisdiction
86 Another aspect which needs to be considered is the aspect of
territorial jurisdiction.
87 Section 6 of the Act deals with the jurisdiction of special court.
It provides that the offence punishable under this Act shall be triable only by the special court within whose local jurisdiction, it was committed.
88 The aspect of territorial jurisdiction was considered in the case of State v. Satya Prakash, Criminal MC No. 2138/2010 decided on 03.11.2011 (Delhi) wherein out of eight FIRs, two were filed in Delhi and rest six in District Gaziabad, UP. The cognizance on these six FIRs could not be taken in Delhi as charge sheet could not have been filed in Delhi.
Out of the two FIRs in Delhi, one was against the two accused in which al legations of extortion were made. However, in the second FIR the involve ment of these accused was not shown as members of organized crime syndicate. It was observed that no sanction under Section 23 could have been granted. In the absence of valid sanction it was held that the desig nated court has no jurisdiction to try the said offence.
89 In the light of Section 6 of the Act, the Special Court at Delhi can have jurisdiction if the charge sheets pertain to the cases registered in Delhi on which cognizance could be taken by competent court in Delhi. If State Vs. Ashwani Aggarwal & Ors. 57 of 175 two preceding FIR's are not within the jurisdiction of Delhi, then the sanc tion granted on the basis of such charge sheets is invalid and no prosecu tion under MCOCA can be carried out. Similar are the observations made in the case of Brijesh vs Arun Kumar, Crl. Appeal no. 1358 decided on 16.04.2015 (Delhi High Court).
90 In the present case there is only one charge sheet against Chota Shakeel which has been filed in Delhi in which Chottal Shakeel has been shown in column No.12 and in the main charge sheet against other accused, the cognizance has been taken by the court of competent jurisdic tion. The remaining FIR's were all registered in Mumbai. The requirement of more than one FIR on which cognizance has been taken by court of competent jurisdiction which is Delhi in the present case, is not satisfied.
The Sanction under Section 23 of the Act has not been granted validly and hence, no charge can be framed under MCOCA against any of the accused persons, on this technical ground, as well.
Use of Violence, coercion intimidation or other unlawful means 91 From the very definition of organized crime under Section 2(e) it is evident that not every unlawful activity which is a cognizable offence would be encompassed in the definition of orgaized crime. It has to neces sarily involve the use of violation, coercion, intimidation or other unlawful State Vs. Ashwani Aggarwal & Ors. 58 of 175 means. The Bombay High Court in Madan vs State of Maharashtra, 2009 all LR (Criminal) 447 had observed that 'organized crime' was not synony mous with continuing unlawful activity. If organized crime was to refer only to filing of more than one charge sheet, then the entire Section 18 of the Act would have become redundant as filing of two charge sheets per se would be sufficient evidence to conclude the commission of organized crime. Also, there would be no need to examine any witness and Section 19 would be redundant. Further, there may be no occasion to carry out in vestigation other than collecting copy of the charge sheet. Consequently, it would be unnecessary to seek sanction of prosecution after collection of such charge sheet. Therefore, filing of more than one charge sheet before the competent court is one of the incident to establish continuing unlawful activity and it must be further shown that there was huge violence, threat, intimidation or coercion by the members of the organized crime syndicate.
The definition continuing of unlawful activity uses the words violence, threat of violence, intimidation or coercion. The meaning of these words as de fined in Oxford Dictionary (5th Edition) are as under :
a) Threat oppression, compulsion, misery, danger, try to force or induce through means of rebuke, threat, vehemence;
b) Violence state of quality of being viiolent in action; Great force or strength in operation; vehemence, severity, intensity.
State Vs. Ashwani Aggarwal & Ors. 59 of 175
c) Intimidation action of intimidating someone, especially in order to in terfere with the free exercise of political or social rights.
d) Coercion constraint, restraint, compulsion, controlling of action by force; compression ; physical pressure.
92 In the case of Ranjeet Singh (supra), it was mentioned that word 'violence' has been used only in Section 146 and Section 153 of IPC. Word 'Intimidation' alone has not been used in IPC except, under Section 506 which refers to criminal intimidation. The word 'coercion' finds place only in the Contract Act.
93 In this case, it was observed that if the words "unlawful means"
was to be widely construed so as to include any or other unlawful means, then the offences of cheating, criminal breach of trust would also be in cluded which prima facie, does not appear to be intended by the Parlia ment. It was further observed that the question whether "unlawful means"
must be construed "ejusdum generis" with the preceding words, was left open.
94 This aspect was considered by the Delhi High Court in the case Dr. Mahipal Singh vs. CBI 2012 Crl. Law Journal 3110. It was observed that the principle of "ejusdum generis" would apply when particular words pertaining to a class, category or genus are followed by general words. In such a case, the general words are construed limited to things of the same kind as those specified. The rule reflects an attempt to recon cile the incompatibility between specific and general words in view of other rules of interpretation that all words in a statute are given effect, if possi State Vs. Ashwani Aggarwal & Ors. 60 of 175 ble. That a statute needs to be read as a whole and that no words in a Statute are presumed to be superfluous. The rule applies only when :
a) The Statute enumerates the specific words ; b) The space of enumeration constitutes a class or category; c) That class or category is not exhorted by the enumeration; d) The general term follow the enumeration ; and e) There is no indication of a different legislative intent. 95 In the case of United Town Electric vs. Attorney Gen
eral for Newfound Land 1939 1 All England Reporter 423 (PC) , it was noted that rule cannot be applied unless there is a genus constituted or a category disclosed. If the preceding words constitute description of a complete genus, the rule has no application. Similar are the observation made in Allen vs. Emmerson 1944 1 All England Reporter 344 (KBD) wherein, it was held that to invoke the application of ejusdum generis, there must be a distinct genus or category. Where this is lacking, the rule cannot apply.
96 After making the reference to these judgments in the case of Dr. Mahipal Singh (Supra) it was observed that the terms violence, coer cion and intimidation do not belong to the same specific genus and thus, the words "unlawful means" cannot be read ejusdum generis to the pre ceding words and are required to be widely construed, keeping in mind the intended object of the Statute. It was further observed that though simple offence of forgery and cheated committed more than once would not come within the ambit of organized crime. However, the same would not be ap plicable to a case where cheating and forgery are done continuously so as to rig/manipulate the result of the examination. As per the objects and aims of MCOCA, the activities intended to be curbed were mentioned as State Vs. Ashwani Aggarwal & Ors. 61 of 175 killing, extortion, smuggling, terrorism, illegal trade and narcotics money laundering, etc. The offences of forgery and cheating by personation etc. are also covered under the Prevention of Money Laundering Act, 2002. In view of the aims and objects of MCOCA, if cheating and forgery is commit ted in a manner as an organized crime, particularly affecting the results of examination and thus, destabilizing the education system, the said activity would certainly fall within the ambit of unlawful means as required in orga nized crimes. The said unlawful activity has some semblance to coercion, intimidation etc. , as the same is performed by manipulating at an exten sive level.
97 This can be best understood in the facts of Lalit Somdutt Nag pal (Supra) case where, the violation of Sales Tax and Excise Laws was held by their Lordships to be not intended to be the basis of application of provisions of MCOCA.
98 In the present case, the organized crime which is targeted is orga nized betting in the game of IPL 6 including the consequent activity of laun dering of money so generated from the activity of betting and match fix ing by major bookies like Ashwani Aggarwal, Ramesh Vyas, Chandresh Jain, Jitender Jain, Firoz Ansar who have their networks through their as sociates and links to approach cricket players like S. Sreesant, Ankit chavhan and Ajit Chandila for match fixing. It is alleged that these activities involve transactions of huge amounts and exchange of money between bookies, players and other stake holders. It has been vaguely claimed that at times threats are extended in case of breach of agreements. However, considering the nature of these transactions of match fixing and betting which work through wide spread network, it can be visualized that element of intimidation and coercion would inherently be involved in these dealings.
State Vs. Ashwani Aggarwal & Ors. 62 of 175 99 The activities of betting and match fixing could qualify as "any un
lawful activity" involving coercion and intimidation which are undertaken with the object of pecuniary gain.
Money Laundering and Match fixing and betting 100 The necessary incident of sports betting and match fixing is gener ating staggering amounts of black money. Money laundering is an essen tial component, as without it crime really would not be. Money laundering is a process which transforms the proceeds of crime into assets that appear legitimate in nature, example properly fort polios, luxury goods such as art works or accounts at reputable banks. The laundering of such dirty money perpetuates the power and influence of such criminal enterprises by re sourcing bribing and corruption of key political and law enforcement figures and thus, it affords such enterprises for the protection in carrying out their trade. The countries' exchequer is denied significant revenue and brings fi nancial insurgency besides, resulting it terrorist activities. Gambling plat forms provide a unique conduit for laundering the proceeds of crime such that they emerge as legitimate business revenue. In the present case it had been obliquely referred that the money which was being generated through this betting and match fixing was being transacted through Hawala transactions. To corroborate this the prosecution had relied on various SMS messages exchange between Ashwani Aggarwal and other asso ciates. Sending of SMS's without there being any corroborative evidence in the nature of bank accounts, money transactions or other manifestations of this money in material form, cannot be considered as sufficient evidence to make out even a prima facie case of Hawala being done of the illegal money allegedly generated in this business. It is significant to note that Sanjay Aggarwal @ chotu was alleged to be face for investment for this il State Vs. Ashwani Aggarwal & Ors. 63 of 175 legal money, but investigations have not revealed amassing of any prop erty or money in the bank accounts which was not accounted. Like was property details of Ashwani Aggarwal do not reflect any disproportionate in vestment or wealth.
101 The prosecution has claimed that money was being transacted through Hawala, but this is noting conjectures, surmises and presumptions which has drawn from the fact of there being alleged betting and match fix ing during the cricket matches. There is the allegations of Hawala transac tions are not supported by any evidence.
102 In so far as money laundering is concerned it is the case of prose cution itself that the investigations in this regard in being carried out by en forcement directorate. Therefore, the prosecution has not been able to even show a prima facie case of offence of Hawala by way of illegal money transactions being conducted in an organized way inter se the accused persons.
Abettors, Conspirators and Facilitators 103 Learned special PP, on behalf of the State has argued that the pro visions of MCOCA, deals not only with those who are directly involved in the commission of offence, but Section 3(2) also includes those who con spire, abet or knowingly facilitate the commission of an organized crime. It was argued that all the accused persons besides Dawood Ibrahim and Chota Shakeel and Dr. Javed Chautani, were the conspirators and abet tors and would thus, be covered under the Act.
104 In the case of Ranjeet Singh (supra), it was observed that the expression "abet" does not refer to the definition of "abetment" as con State Vs. Ashwani Aggarwal & Ors. 64 of 175 tained in Section 107 IPC. It refers to such meaning which can be attrib uted to it in general sense, with grammatical variations and cognate ex pressions. The inclusive definition of abetment although expansive in na ture, includes the "communication" or "association" with any person with the actual knowledge or having reason to believe that such per son is engaged in assisting in any manner the organized crime syndi cate. It was observed that any communication or association which has no nexus with the commission of organized crime, would not come within the purview thereof. "Communication to" or "association with" any person by itself would not come within the meaning of aforementioned provision. It was further explained that communication or association to a person must by with the actual knowledge or having to believe that he is engaged in assisting organized crime syndicate. Thus, there must be a direct nexus with the offence committed by the organized crime syndicate. Also, the said offence must be the one contemplated by statement of objects and reasons. Furthermore, mens rea is a necessary ingredient for commis sion of a crime under MCOCA.
105 In Sri Ram vs State of U.P. AIR 1975 SC 175, the Apex Court stated that to constitute abetment, the abettor must be shown to have in tentionally aided the commission of the crime. Mere proof that the crime charged could not have been committed without the involvement of the al leged abettor, is not enough for compliance with the requirements of Sec tion 107.
106 The term conspiracy was also considered in the case of Ranjeet Singh Singh (supra). It was noted that the expression 'conspiracy' is not a term of art. It has definite connotation. Subba Rao J. in Sardar Surdul Singh Caveeshar vs. State of Maharashtra AIR1965 State Vs. Ashwani Aggarwal & Ors. 65 of 175 SC 682, observed that the admissibility and evidentiary value of the evi dence as between coconspirators is limited by two circumstances namely, that the acts must be in reference to common intention, and in respect of a period after such intention was entertained by any one of them. The ex pression, "in reference to their common intention" is very comprehen sive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" as is inundated in the English law. As a result anything said, done or written by conspirator after the conspiracy was formed would be evidence against the other, before he entered the field of conspiracy or after he left it. These observations were relied upon by the Apex Court in the case of Kehar Singh and Anr. v. State, AIR 1988 SC 1883.
107 In the case of T. K. Narayan v. State of Kerala, 1995 (1) SCC 142 it was stated that the ingredients of this offence (conspiracy) are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing illegal act or for doing by il legal means the act which by itself would not be illegal. The circumstances before, during and after the occurrence have to be considered about the complicity of the accused. If the circumstances are compatible with the in nocence of the accused persons, then it cannot be held that the prosecu tion has successfully established its case. Even if such acts are proved to have been committed, it must be clear that they were so committed in pur suance of agreement made between the accused who are parties to the alleged conspiracy. Inference from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other explanation.
State Vs. Ashwani Aggarwal & Ors. 66 of 175
108 Having highlighted the aspects which need to be considered before
any person can be held as an abettor facilitator or conspirator, the individ ual roles of each accused needs to be examined to establish prima facie if they had the requisite mensrea by way of "intention" or knowledge to be a participant in the alleged activities of the "Organized Crime Syndicate".
Ashwani Aggarwal @ Tinku Mandi 109 The case of the prosecution against Ashwani Aggarwal @ Tinku Mandi is that he was arrested from his house from Adarsh Nagar, Delhi on 16 May, 2013 pursuant to the interception through 4 mobile numbers with Dubai Pakistan based underworld. On the basis of content of intercepted voice calls, it was confirmed that Ashwani Aggarwal was involved in spot fixing/ session fixing activities as a member of under world syndicate. In the raid that was conducted on 16 May, 2013 it was found that he was run ning a betting exchange and 35 mobile phones, 6 laptops and 1 ipad, I dish TV set up box, 3 internet cards, 3 wifirouters, 1 hp printer, TV decoder, I TV decoder of another company, 1 LCD of 40 inches, handwritten diaries and papers were recovered. It was found that he had obtained a large number of mobile phone numbers by impersonating identities in order to run illegal exchange and to evade detection. The CDR's of mobile phones used by accused show his links with various conduits of underworld don Dawood and Chota Shakeel. The intercepted calls also establish his nexus with various bookies/fixers in India and foreign aids of Dawood and Chota Shakeel. It was found that he had been paying money through henchmen Sunil Bhatia to the cricketer Ajit Chandila for spot fixing. In an intercepted call which was between Tinku Mandi @ Ashwani Aggarwal and Javed Chautani, it was found that Ashwani was encouraging Javed to use VOIP, internet calling as it was considered safest method of communication. This State Vs. Ashwani Aggarwal & Ors. 67 of 175 accused was also found mentioning that he was in touch with Pakistan based conduit of Dawood called Salman. In another intcercepted call be tween Javed Chutani and Tinku he was found informing Dr. Javed about the TV programme on Z Channel which again leaves to doubt about his membership with crime syndicate. This clearly establishes his nexus with organized Crime syndicate.
110 The travel dates of Tinku to Dubai coupled with his disclosure statement establish that he had met Dr. Javed in Radisson Hotel and other places. It has also been found that book of entries were having name of Chandresh Jain @ Jupitor who had also figured in conversa tion between him and Dr. Javed Chutani. Tinku has also been found to be linked with Sanjay Aggarwal @ Chotta Nagpur, a Mega bookie of Nagpur who is suspected to be the front man for investment of ille gal wealth being generated by this syndicate. Furthermore, coac cused Ramesh Vyas who is also a member of crime syndicate in his confessional statement under Section 18 of MCOCA, had disclosed that Ashwani Aggarwal was the important member of crime syndi cate.
111 Learned counsel on behalf of Ashwani Aggarwal has argued that mere recovery of 35 mobiles and other paraphernalia from the of fice of accused, does not perse establish commission of any offence by the accused. The engaging in betting in a game of cricket which is a game of skill, is any way not an offence under Section 12 of Public Gambling Act. The conversation between this accused with Javed Chutani do not make him a member of organized crime syndicate. Furthermore, for invoking MCOCA, it is essential that there should be 2 FIR's in the preceding 10 years which is not there in the case of State Vs. Ashwani Aggarwal & Ors. 68 of 175 Ashwani Aggarwal. No offence of MCOCA or any other act is, there fore, made out against him.
112 The evidencce as produced against this accused Ashwani Aggarwal even if accepted on its face value without any proof shows that he was running a betting house from the premises in Gurgaon. In this business, he was also claimed to be connected with Chandresh Jain @ Jupiter, who is also claimed to be involved in the same business. However, there is no direct conversation between Ashwani Aggarwal and Chandresh Jain, whose name has only figured in the conversation between Ashwani and Dr. Javed Chautani. There is no evidence whatsoever to show that Ashwani Aggarwal was link with Chandresh Jain or they were together working as members of a Sydicate dealing in betting.
113 The prosecution has sought to establish the link of Ashwani Aggarwal to the alleged Core Crime Syndicate of DawoodChhota Shakeel on the basis of various call intercepts between him and Dr. Javed Chautani. Though there is no evidence to show that the mobile number attributed to Dr. Javed Chautani was in fact in his name but even if it is accepted that Ashwani Aggarwal had been talking to Dr. Javed Chautani then too the call intercepts merely show that on one occasion he had advised Dr. Javed Chautani to use VOIP as it was State Vs. Ashwani Aggarwal & Ors. 69 of 175 more safe and that he was in touch with one Salman, claimed conduit of Dawood. On another occasion, he has told Javed Chautani to watch a Zee Programme, which was being aired in regard to match fixing and involvement of Dawood. These conversations at best can lead to the conclusion of their being friendship and an association between Ashwani Aggarwal and Javed Chautani but by no stretch of interpretation can it be said that from these call intercepts it can be inferred that Ashwani Aggarwal was working as a member of Core Crime Syndicate to which he was linked to Javed Chautani. As already discussed above, there is no evidence placed on record by prosecution to show that Dr. Javed Chautani was in any way working for Dawood and was a link between the various bookies and the Crime Syndicate of Dawood.
114 The accused Ashwani is also shown to be linked to Sanjay Aggarwal @ Chhota Nagpura as a face for investing the illegal wealth that was being generated by this Syndicate. However, in depth investigations carried out by the prosecution has not brought forth any evidence to show that there was any illegal wealth of Ashwani, which was invested in real estate or otherwise by Sanjay Aggarwal. A list of properties and accounts of Ashwani Aggarwal has been filed but none has been shown to be unaccounted.
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115 The entire evidence of the prosecution sought to be led against
Ashwani Aggarwal, even if accepted does not provide the nexus with the Core Crime Syndicate, which is the primary requirement for fram ing a charge against him for being a member of the organized Crime Syndicate. No prima facie case under MCOCA is made out against the accused Ashwani Aggarwal.
Ramakant Aggarwal 116 The case of prosecution against Rama Kant is that he was ar rested on 16.05.2013 at the instance of coaccused Ashwani Aggar wal from illegal betting exchange at Gurgaon, Haryana along with three accused Ajay Goel, Amit Gupta and Dipit Garg. The 35 mobile phones had been recovered from the said betting exchange, the analysis of which reveal they were co located at Rohini till 2.04.2013 and thereafter, were moved to Gurgaon on 03.04.2013. The analy sis of calls disclosed that except two phones, all other mobiles were either receiving incoming calls or being used to making outgoing calls. There were large number of international calls and VOIP calls on these numbers. One phone was permanently on call forwarding i.e. was acting as feeder phone to another. Ramakant Aggarwal was a bookie and was found working for betting exchange of Ashwani Ag garwal and was a mediator amongst various bookies including Sanjay Aggarwal. His presence at the betting exchange during IPL 6 matches establishes his deep involvement in spot/session fixing case. Betting books were seized which were being maintained by Ramakant Aggarwal. He was also found to have been arrested on 28.12.2012 State Vs. Ashwani Aggarwal & Ors. 71 of 175 under Mumbai Gambling Act vide FIR No.3092/12 and was found wanted in another FIR number 3032/13.
117 It is argued on behalf of accused that the only incriminating evi dence against this accused is of maintaining books of betting and re covery of sims, besides his presence at betting exchange being run by Ashwani. There is no evidence to link him to crime syndicate and therefore no offence is made out against him.
118 The allegations that has been made against accused Ra makant Aggarwal by the prosecution is that he was a bookie and was found working from the betting exchange of Ashwani Aggarwal and was a mediator amongst various bookies including Sanjay Aggarwal. To corroborate these allegations the prosecution had rested on his presence at the betting exchange during the IPL6 matches and also the betting bookies that were being maintain by him. The betting bookies may show that he was indulging in this activity but as has al ready been considered this does not qualify as an offence under Pub lic Gambling Act or any other law. Unfortunate as it may be that though he is shown to be a bookie, but in the absence of any statute bringing such act into domain of penal offence, no charges against him can be framed either of cheating or under Public Gambling Act. Further more presence of Ramakant Aggarwal in the exchange of Ashwani Aggarwal may sure that he was using the facilities estab lished by Ashwani Aggarwal, but these cannot even lead to draw a prima facie conclusion of there being any nexus between and Ash wani Aggarwal or with the core crime syndicate. Further in order to make him a member, it has to be shown that there was a nexus of this State Vs. Ashwani Aggarwal & Ors. 72 of 175 accused with the core syndicate and that he was so acting with the requisite intention and knowledge. None of these ingredients are made out from the entire prosecution evidence that is relied upon by them.
119 The allegations that has been made against accused Ramakant Aggarwal by the prosecution is that he was a bookie and was found working from the betting exchange of Ashwani Aggarwal and was a mediator amongst various bookies including Sanjay Aggarwal. To corroborate these allegations, the prosecution had relied on his presence at the betting exchange during the IPL6 matches and also the betting books that were being maintained by him. The betting books may show that he was indulging in this activity, but as considered later this does not qualify as an offence under Public Gambling Act or any other law. Unfortunate as it may be that though he is shown to be a bookie, but in the absence of any statute bringing such act into domain of penal offence, no charges against him can be framed either of cheating or under Public Gambling Act. 120 Further, presence of Ramakant Aggarwal in the exchange of Ashwani Aggarwal may show that he was using the facilities established by Ashwani Aggarwal, but this cannot even lead to a prima facie conclusion of there being any nexus between and Ashwani Aggarwal or with the core crime syndicate. Further. in order to make him a member, it has to be shown that there was a nexus of this accused with the core syndicate and that he was so acting with the requisite intention and knowledge. None of these ingredients are made out from the entire prosecution evidence that is relied upon by them.
State Vs. Ashwani Aggarwal & Ors. 73 of 175
3. Ajay Goel, Amit Gupta and Dipit Garg
121 As per the prosecution, the accused Ajay Goel, Amit Gupta
and Dipit Garg were arrested on 15.05.2013 from B428, Sushant Lok, Gurgaon, from where large number of mobile phones, laptops etc. were recovered. Accused No.2 Ajay Goel was found to be maintaining the complete record of IPL 6 spot /session fixing betting with the help of recovered laptops. The disclosure statements of the three accused were recorded and their voice samples were analyzed with the conversations on the intercepted calls.
122 It is argued on behalf of these three accused that none of these disclosure statement of the accused were recorded under Section 18 of MCOCA. Therefore, they are inadmissible in evidence. In so far as the confessional statement of accused no.1 Ashwani Aggarwal is concerned, the same has been held to be nonvoluntary by the Ld. M.M. In other words, accused No.1 Ashwani Aggarwal did not name any of these three accused. No recoveries have been effected from these three accused or at their instance. There is also no evidence to show that they were found gambling or using any equipment of gambling. The laptops and mobiles that were recovered from Sushant Lok, Gurgaon were allegedly at the behest of accused No.1 Ashwani Aggarwal. The recoveries had been effected prior to the disclosure statements of accused No.2, 3 and 4. Moreover, neither these recovered laptops have not been placed on record, nor any document in regard to analysis of these laptops has been filed. There is no record of spot/session fixing or betting of IPL 6 and no such material has been recovered at the instance of accused no.2.
State Vs. Ashwani Aggarwal & Ors. 74 of 175 123 Further, none of the numbers which were analyzed un
der the head Ajay Goel belongs to him except No.9873477771. The transcripts of the conversation attributed to accused no.2 to 4 do not disclose any matter which goes to the substratum of the prosecution case. There is no reference to any syndicate or any connection with the players of the IPL 6. Furthermore, these alleged transactions have been extracted from original recordings. The supporting certifi cate under Section 65B of the Evidence Act of the Investigating Offi cer does not satisfy the requirement of the said Section and are there fore inadmissible. The expert's report of phone analysis is also far from conclusive and in any case, a weak piece of evidence. There is no other evidence against these three accused, who are entitled to be discharged.
124 The only allegations against these three accused are that they were found in the office of Ashwani Aggarwal in Gurgaon and were found to be maintaining complete record of IPL 6 Spot/Session Fixing with the help of recovered laptops. The only evidence against them is the confessional statement of accused Ashwani Aggarwal. However, the only fact that gets established from the entire evidence against them that they were working on behalf of Ashwani Aggarwal for maintaining book pertaining to betting. This is in itself without anything more does not make them linked with the Crime Syndicate or an abettor or co conspirator in this alleged organized crime of betting.
Neither any nexus nor any mens rea is even prima facie disclosed State Vs. Ashwani Aggarwal & Ors. 75 of 175 against these three accused of being involved in the organized crime of betting. No charge is made out against them under any penal statute.
Sunil Bhatia 125 The case of prosecution against Sunil Bhatia is that he was a lead fixer cum henchmen of crime syndicate. He acted for coaccused Ashwani Aggarwal alias Tinku and was directly linked to other crickets like Ajit Chandila and Others. In his confessional statement, he had disclosed about Ajit Chandela having received a lot of money from Ashwani Aggarwal through Hawala in IPL, 2012. He had also dis closed about having visited residence of Ajit Chandela who had re turned the money by way of two cheques of 4 lakh each, since he did not perform as agreed. One cheque of 4 lakhs was however, en cashed and debited from the account of Ajit Chandalia. Further, state ments of witness Sidharth Trivedi also categorically pin down role of Sunil Bhatia for approaching Ajit Chandalia for spot fixing. The state ment of witness Vivek Singh shows that he was enticed by Sunil Bha tia to join his syndicate for spot/ session fixing to earn handsome amounts at the conclusion of IPL 6 matches. However, Vivek Singh declined. It is thus, submitted that the confessional statements of Sunil Bhatia coupled with statements of two prosecution witness, clearly establish his role as henchman of Ashish Aggarwal and being linked to under world through Ashwani for undertaking the activities of spot fixing and match fixing on behalf of the syndicate.
State Vs. Ashwani Aggarwal & Ors. 76 of 175
126 It has been argued on behalf of Sunil Bhatia that main evi
dence against him is the confessional statement under Section 18, but the same has been retracted by him. Further, two dishonoured cheques of Ajit Chandila which were allegedly recovered from his possession pertain to IPL 2012 and had no connection with IPL 2013 to which present case pertains. Furthermore, he has been linked to Javed Chutani who had told Ajit Chandila to return the money to Sunil Bhatia, but there is no conversation between him and Javed in this regard. The intercepted calls with Ashwani Aggarwal merely disclose the activity of Match fixing which can at best be covered under the Gambling Act, but no MCOCA can be invoked since there is no evi dence to show that he was linked with the organized crime syndicate.
127 The case of prosecution against Sunil Bhatia is that he was lead fixer cum henchmen of crime syndicate. He acted for coaccused Ashwani Aggarwal alias Tinku and was directly linked to other crickets like Ajit Chandila and Others. In his confessional statement he had disclosed about Ajit Chandela having received a lot of money from Ashwani Aggarwal through Hawala in IPL 2012. He had also dis closed about having visited residence of Ajit Chandela who had re turned the money by way of two cheques of 4 lakh each, since he did not perform as agreed. One cheque of 4 lakhs was however, en cashed and debited from the account of Ajit Chandalia. Further, state ments of witness Sidharth Trivedi also categorically pinned down role of Sunil Bhatia for approaching Ajit Chandalia for spot fixing. The statement of witness Vivek Singh shows that he was enticed by Sunil Bhatia to join his syndicate for spot/ session fixing to earn handsome amounts at the conclusion of IPL 6 matches. However, Vivek Singh declined. It is thus submitted that the confessional statements of State Vs. Ashwani Aggarwal & Ors. 77 of 175 Sunil Bhatia coupled with statements of two prosecution witness, clearly establish his role as henchman of Ashish Aggarwal and being linked to under world through Ashwani for undertaking the activities of spot fixing and match fixing on behalf of the syndicate.
128 It has been argued on behalf of Sunil Bhatia that main evi dence against him is the confessional statement under Section 18, but the same has been retracted by him. Further, two dishonoured cheques of Ajeet Chandila which were allegedly recovered from his possession pertain to IPL 12 and had no connection with IPL 13 to which present case pertains. Furthermore, he has been linked to Javed Chutani who had told Ajeet Chandila to return the money to Sunil Bhatia, but there is no conversation between him and Javed in this regard. The intercepted calls with Ashwani Aggarwal merely dis closes the activity of Match fixing which can at best be covered under the gambling act, but no MCOCA can be invoked since there is no ev idence to show that he was linked with the organized crime syndicate.
Kiran Dhole 129 The case of the prosecution against accused Kiran Dhole who was arrested on 19.05.2013 from Aurangabad, Maharashtra is that in March, 2013 he along with associate Sunil Bhatia had met Ajit Chandila and Ankit Chavhan in Delhi, along with Ashwani Aggarwal @ Tinku for spot/session match fixing. The involvement of Kiran Dole has been confirmed by the accused Sunil Bhatia, his confessional statements under Section 18 of MCOCA and from the statement of witness Vivek under Section 164 Cr.P.C. The call details of accused Kiran Dole also disclose that he was closely linked with cricketer State Vs. Ashwani Aggarwal & Ors. 78 of 175 Manish Gudewar, Sunil Bhatia, Ashwani Aggarwal and Ajit Chandila.
130 The allegation of the prosecution against accused Kiran Dole are that he had met Ajit Chndila and Ankit Chavhan, the two players along with Sunil Bhatia and Ashwani Aggarwal. Merely meeting or knowing Sunil Bhatia and Ashwani Aggarwal in itself cannot lead to any inference that their association and friendship or meeting with Ajit and Ankit was with the sole objective of fixing for matches. The conversation dated 10.05.2013 between Ajit Chandila and Kiran Dhole is an innocuous conversation about Ajit Chandila going to Jaipur and of Kiran Dole meeting him on 14.05.2013. The second transcript dated 15.04.2013 is between Kiran Dole and Sunil Bhatia about some team which was winning and Sunil informing that Vivek was going to Jaipur where they would have a holiday on the next day and practice would commence from 16th and also about having a party. The third conversation dated 23.04.2013 between Kiran Dole and Sunil Bhatia is about Kiran Dole wherein Kiran Dole has been telling Sunil Bhatia that he has been coercing Ajit Chandila to meet Ashwani Aggarwal and also about having a party in which Ajit, Ankit, Sidharth, Badrit, Edwart, Badiya would be invited and there is also a mention of Cooper who may also be invited and about Sunil Bhatia inviting them and that on 25.04.2013 they would be in Delhi and a room has been fixed for meeting and he would not be able to avoid talking.
131 The prosecution has relied only on one intercepted call between Ajit Chandila and Kiran Dole which only shows that Kiran Dole knows Ajit Chandila. The other conversations only show that State Vs. Ashwani Aggarwal & Ors. 79 of 175 Kiran Dhole had tried to prevail upon Ajit Chandila to meet Ashwani Aggarwal and had tried to fix a meeting in Delhi. Merely knowing Ajit Chandila and persuading him to meet Ashwani Aggarwal in Delhi can only lead to the inference of Kiran Dole knowing Ajit Chandila and also compelling him to meet Ashwani Aggarwal, but beyond introducing Ajit, Ashwani there is no evidence to show that he was involved in any manner of alleged match fixing. It also does not show that Kiran Dole was aware of the activities of Ashwani Aggarwal in match fixing or had the necessary knowledge that Ashwani Aggarwal was part of the organized betting and match fixing or that organized activity was being undertaken by Ashwani Aggarwal as part of the organized crime syndicate. No prima facie case under MCOCA is made out.
Manish Guddewar 132 Manish Guddewar was arrested by the police on 19.05.2013 at Aurangabad, Maharashtra along with his other associates Sunil Bhatia and Kiran Dhole. The case of the prosecution is that he was a person who introduced Ajit Chandila to accused Kiran Dole for match fixing. At the time of his arrest, one mobile phone was recovered. The statement of cricket coach of Nahar Singh Stadium, Faridabad, namely Raj Kumar Sharma and Krishan Kumar also prove that accused Manish Guddewar along with Amit Kumar Singh and Ajit Chandila, used to practice together in the stadium. This indicates the long association and intimacy with each other.
133 The only allegation that has been made by the prosecution against accused Manish Gadewar is that he was the close friend of State Vs. Ashwani Aggarwal & Ors. 80 of 175 Amit Kumar Singh and Ajit Chandila. It is alleged that he had introduced Ajit Chandila to accused Kiran Dole, but there is no cogent evidence in this regard. Even if the case of the prosecution is accepted that Ajit Chandila was introduced to Kiran Dole by Manish Guddewar, then too no inference whatsoever can be drawn that such introduction was for the purpose of match fixing. There is not an iota of evidence to show that Manish Guddewar was aware that Kiran Dhole was an intermediary for introducing the cricket players to Ashwani Aggarwal, the alleged bookie. All these aspects are purely conjunctural and the only evidence that the prosecution has been able to collect by virtue of the statements of the cricket coaches is in regard to the close association between Amit Kumar Singh and Ajit Candila and with this accused Manish Guddewar. Merely being a friend cannot be termed as an offence either under MCOCA or under any other penal statute especially in the absence of any evidence to show that he was aware that such activities were being undertakes and on behalf of crime syndicate of DawoodChhota Shakeel. No prima facie case is disclosed against he accused Manish Guddewar under MCOCA.
Sanjay Agrawal 134 The case of the prosecution is that the arrest and subsequent interrogation of accused Ashwani Aggarwal revealed that the accused Sanjay Aggarwal @ Chota Nagpur was an important member of syndicate. He is a major bookie who owns a master account on www.betfair.com, an online betting site registered in U.K and Australia. This account was housed to funnel huge amounts of illegal wealth earned through betting on performance which were fixed by the State Vs. Ashwani Aggarwal & Ors. 81 of 175 syndicate. Further Ramakant Gondia who was arrested along with accused Ashwani Aggarwal had revealed that he was a book keeper for accused Sanjay Aggarwal under the patronage of Tinku @ Mandi.
135 Ld. Counsel on behalf of accused no.35 Sanjay Agrawal has argued that the name of this accused came into picture only after the arrest of accused No.1 Ashwani Aggarwal, who during his interrogation revealed that Sanjay Agrawal was an important member of the syndicate that was involved in spot/session fixing and illegal betting. It was further revealed by Ashwani Aggarwal that this accused owns a master account on www.betfair.com an on line betting site registered in U.K and Australia to funnel huge amounts of illegal wealth earned through betting on performances which were fixed by the bookies.
136 The other incriminating evidence alleged against these accused is the intercepted conversation between accused no.1 Ashwani Aggarwal and this accused which took place on 08.05.2013, 12.05.2013, 14.05.2013 and also with the coaccused on 29.07.2013 and 31.07.2013. The present accused surrendered before the Court on 11.12.2013. Thereafter a supplementary charge sheet against him was filed on 16.05.2014.
137 It is argued on behalf of the accused Sanjay Aggarwal that in order to prove that he was a member of Organized Crime Syndicate, the prosecution has heavily relied upon a chart to portray that this accused was directly connected with accused No.33 Salman @ Master who is alleged to be resident of Lahore, Pakistan and an aid of State Vs. Ashwani Aggarwal & Ors. 82 of 175 underworld Don Dawood Ibrahim accused no.30 herein. However, there is not a single document to establish a direct link between this accused and accused Salman. Despite putting all the cell phone number of Salman and the present accused on surveillance for more than two months, not even a single intercepted communication between them could be detected by the prosecution which establishes that there is absolutely no connection, nexus or communication of any kind between the present accused and Salman. In so far as the intercepted communications between the present accused and accused no.1 Ashwani Aggarwal are concerned, even if all these communications are accepted on their face value, then too no nexus or link between the present accused and the Organized Crime Syndicate can be established.
138 Furthermore, even if the accused Ashwani Aggarwal and his aide and other coaccused are accepted to be members of organized crime syndicate, then too, there is no evidence to show that accused Sanjay Aggarwal was having any knowledge about them being mem bers of organized crime syndicate. This can also not be concluded from the communication and association between Ashwani Aggarwal, his aide Rammakant (Accused No.5) and Sunil Bhatia (Accused No.17) and Chandresh Patel @ Jupiter (Accused 16). Even other wise, the intercepted communications were after the commission of alleged offence of spot/sessions fixing i.e 5.5.2013.
139 It was further argued that even Section 4 of MCOCA, concern ing the possession of unaccountable wealth is not made out. Even State Vs. Ashwani Aggarwal & Ors. 83 of 175 though the prosecution has provided the list of properties purchased by present accused during 2001 to 2013, but in the charge sheet itself the various sources of income, including property building, construc tion, rent etc. has been disclosed by the prosecution itself. Also, nowhere in the charge sheet has the prosecution claimed that all these properties are unaccountable wealth. Much less, no evidence to that effect has been produced on record. This clearly shows that all the properties listed therein are not accountable wealth as the same is duly accounted before the competent authorities. It is submitted that accused Sanjay Aggarwal does not possess even a single unac counted property or wealth.
140 It is further argued that Section 14 of the Indian Telegraph Act, provides the authorization to the Investigating Agency for inter ception of wire, oral or electric communication for which the Superin tendent of Police the competent authority. The prosecution has relied on various original intercepted oral communication between the co accused which implies that necessary permission under Section 14 must have been obtained. However, the date on which the permission was taken has not been disclosed. Further, Sub Section 8 of Section 14 enumerates that no order under this Section authorizing intercep tion of any wired, electronic or oral communication shall be for a pe riod longer than 60 days. The 60 days period shall begin immediately preceding on the day the law enforcement officer, first begins to con duct the interception under the order or 10 days after the order is is sued, whichever is earlier. From the perusal of the charge sheet, it is apparent that interception of oral communication started on 8 May, State Vs. Ashwani Aggarwal & Ors. 84 of 175 2013. In view of Section 14, the order would have necessarily culmi nated on 7.7.13. However, the prosecution has intercepted oral com munication till 31.7.13 which clearly means police authorities ex ceeded the authorization of interception given by the competent au thorities.
142 It is further argued that the prosecution has relied on voluntary confessional statements under Section 18 of MCOCA that had been made by almost all the accused. However, there are stringent re quirements provided under Section 18 to ensure that confessional statements made by accused is voluntary. However during the ratifi cation of the alleged confessional statement, the duty M.M vide of his order dated 23.12.2013 categorically held that the confessional state ment given by this accused Sanjay Aggarwal was not voluntary. Even otherwise, in the alleged voluntary confessional statement, this ac cused has specifically stated that he did not know anything about al leged crime.
143 Further, even if the allegations made in the charge sheet are taken on their face value, then too no offence under Section 420 IPC is made out against this accused. There is not an iota of material or even a whisper that accused Sanjay Aggarwal ever admitted to influ ence the players organizers etc. so as to influence the result of match one way or other. No nexus between the fixers, cricketers and this ac cused has been established. Therefore, no offence under Section 419 and 420 IPC is prima facie established against the accused.
State Vs. Ashwani Aggarwal & Ors. 85 of 175 144 It is argued that the present accused has been ropped in on
the basis of the statement of accused no.1 by Ashwani Aggarwal, wherein, he stated that accused Sanjay Aggarwal was a major bookie who owns a master account on www.betfair.com, an online betting site registered in U.K and Australia. The said disclosure statement of coaccused Ashwani Aggarwal and even of the accused himself be fore the police authority, is inadmissible in evidence and no charge on the basis of these statements can be framed against the accused.
145 Similarly, the offence of conspiracy under Section 120B IPC requires common intention which is again not established from the material on record. No incriminating article has been seized from his possession. There is also no circumstantial evidence to prima facie establish that Sanjay Aggarwal was involved with spot fixing/match fixing in furtherance of common intention with the other accused. It is thus, argued that no offence whatsoever is made out against accused Sanjay Aggarwal.
146 The entire evidence of the prosecution is to show that Sanjay Aggarwal was having Ramakant as a bookkeeper and that he was in spot fixing and illegal betting. Further, he was claimed to be directly connection with accused number 33, Salman @master alleged aide of underworld don Dawood Ibrahim. However, there is not a single link to show between him and Salman. He may be involved in spot fixing and may have association with Ashwani Aggarwal, but when Ashwani Aggarwal himself is not show to be linked to Dawood, Chota Shakeel, State Vs. Ashwani Aggarwal & Ors. 86 of 175 through Javed Chautani then, there is no other evidence to link him to the core syndicate.
147 It was also alleged that he was a face for utilizing an invest ment of illegal money which was being allegedly generated through betting. However, there is no evidence whatsoever to corroborate these allegations. The property details of Sanjay Aggarwal also did not show that he was a face for legalizing the bet money.
148 It has been rightly argued on behalf of the accused Sanjay Ag garwal that the requisite nexus or link with the core syndicate has not been established. Also, there is no evidence whatsoever, to show that he had any association or communication with Javed, Dawood or Shakeel or that there existed any mens rea to be part of the crime syndicate. No association or communication of this accused with the core syndicate is brought forth and therefore, he is not shown to be an abettor or conspirator of core crime syndicate.
Jitender Kumar Jain 149 Accused Jitender Kumar Jain @ Jitu Tharad was apprehended from Ahmedabad, Gujarat on 27.06.2013. During the investigations it was established that he was the chief financer for Ahmedabad, Gu jarat based syndicated involved in spot/session fixing. Investigations revealed that his assistants/associates Chandresh Patel, Mannan U. Bhatt and Amit Kumar Singh were acting on his direction and were in ducing players Ajit Chandila, Ankit Chavhan, S. Sreesant for spot/ses sion fixing, while he himself always remained in the background to State Vs. Ashwani Aggarwal & Ors. 87 of 175 control their activities. He himself has been found infilterating other team participating in IPL through his colleague Amit resident of Hyder abad and his associates namely Babu Sunil Chander Saxena, Syed Durrey Ahmed and Mohd. Yahiya @ Yusuf. He had visited Chennai to fix players of another team participating in IPL, which is corrobo rated by his call details and those of all the above named accused persons.
150 In the call details dated 15.05.2013 accused Chandresh Patel confirmed to accused Jitender Kumar Jain that he was successful in fixing Ankit Chavhan for delivering a predetermined performance in the upcoming match. In two different call details dated 15.05.2013 accused Amit Kumar Singh was found acting in compliance of the di rection given by accused Jitender Kumar Jain in fixing Ankit Chavhan as well as S. Sreesanth for giving a specific performance. The crick eter Harmeet Singh in his statement under Section 164 Cr.P.C has also disclosed the high level involvement of accused Jitender Kumar Jain in this syndicate. It was disclosed by him that in the mid June, 2013 after he was signed with Rajasthan Royals, Ajit met him after the match and invited him for dinner at a Hotel, where he also invited Hitesh. There he took him to one room to meet Mannan U. Bhatt and Jitender. They were talking about spot/session fixing.
151 It was claimed that accused Jitender Kumar Jain is suspected to be linked with the under world syndicate of Dawood Ibrahim and Chotta Shakeel through Dr. Javed Chutani at Mumbai. An intercepted call between Javed Chutani and Ashwani Aggarwal is found mention ing that Jeetu would use the conference line of Chutani for connecting with Tinku @ Mandi's exchange and that Jitender Kumar Jain had State Vs. Ashwani Aggarwal & Ors. 88 of 175 also worked for Javed Chutani in the past on 23 occasions. The prima facie link of accused Jitender Kumar Jain with under world syn dicate has thus, been established. Further, Jitender Kumar Jain has admitted his guilt in this confession under Section 18 of the Act.
152 Ld. Counsel on behalf of accused has argued that he had re tracted his confession before the Magistrate. The disclosure state ment made to the police are hit by Section 27 and are not admissible. Further more, the telephonic conversations are not supported with the certificate under Section 65B of Indian Evidence Act and can, therefore, not be read in evidence. Further more, the contract, if at all, between the accused and the players was as a bookie and he was not answerable to the public. Further more, he has never been booked earlier for any crime and, therefore, MCOCA is not attracted.
153 The case of the prosecution is that he was a bookie and a chief financer, who had been working with his associates Chandresh Patel, Mannan U. Bhatt and Amit Kumar Singh for fixing the players. The conversations between him and Chandresh Patel and his call with Amit Kumar Singh have been relied to show that he had in fact, ar ranged for fixing S. Sreesanth and Ankit Chavhan.
154 In so far as S. Sreesanth is concerned, it is the case of the prosecution itself that the S. Sreesant did not performed as per the ar rangement as he did not concede 14 runs. Even if it is accepted that he was a bookie who had been approaching the players through his associates, but the big question is what is the offence that is made out. This would not amount to an offence of cheating under IPC. The Public Gambling Act is not applicable to the game of skill which State Vs. Ashwani Aggarwal & Ors. 89 of 175 cricket is and, therefore, no offence prima facie is made out against the accused.
155 In so far as MCOCA, is concerned, the prosecution has relied upon the alleged telephonic call between Javed Chutani and Ashwani Aggarwal wherein they were talking about accused Jitender Kumar Jain being in this business and having worked for him in the past on 23 occasions. As already discussed above, Dr. Javed Chutani has not been shown to be having any link with Dawood Ibrahim or as a part of their crime syndicate. Further, there is no direct communica tion between Dr. Javed Chutani and Jitender Kumar Jain. The best conclusion that can be drawn from this alleged conversation between Dr. Javed Chutani and Ashwani Aggarwal is that Jitender Kumar Jain is also a bookie and had been associated with Dr. Javed Chutani in the past. This conversation only shows that accused Jitender Kumar Jain had been associated with Dr. Javed Chutani, while Ashwani Ag garwal was a bookie who had also approached Dr. Javed Chtani. There is not an iota of evidence to show that accused Jitender Kumar Jain was working as part of the crime syndicate or that his associa tions or communication with Dr. Javed Chutani was with the knowl edge that he was working as part of the organized crime syndicate. In fact, there is absolutely no evidence in this regard. Further more, as already discussed above, the primary requirement for even prima fa cie establishing an organized crime syndicate has not been met by the prosecution. Consequently, no offence is made out against the accused Jitender Kumar Jain.
Chandresh Jain @ Jupiter
156 The case of the prosecution is that initially the intercepted calls
State Vs. Ashwani Aggarwal & Ors. 90 of 175
revealed that one Chandresh Jain @ Jupiter resident of Jaipur, Rajasthan was directly in touch with under world conduits Salman @ Master and Dr. Javed Chutani. The accused Ashwani Aggarwal had also revealed that Chandresh Jain was a prominent member and a mega bookie/fixer. In the intercepted calls between Ramesh Vyas and Salman, the name of accused Chandresh Jain had been figured as an important actor of this syndicate. These intercepted calls were regarding the restructuring of credit limit available to betting/Hawala operators. The stature of Jupitor in this syndicate became clear from the confessional statement of accused Ramesh Vyas who revealed that it was Jupitor who had introduced him to Dr. Javed Chutani and had facilitated the entry of Ramesh Vyas into the syndicate. Thereafter, with the approval of Dawood Ibrahim and Chotta Shakeel, Ramesh Vyas had gradually taken over the turf belonging to accused Feroz.
157 It has been argued on behalf of accused Chandresh Jain that in the conversations that have been relied by the prosecution, the name of Jupiter had featured. The accused Chandresh Jain is claimed to be the said person on the basis of the confessional statement made by coaccused Ramesh Vyas who asserted that Chandresh Jain was in fact Jupiter. It was argued that there is no incriminating evidence to show that Chandresh Jain was part of crime syndicate. The allegations that can be best sustained against him are of being a bookie and running a betting house, but that is an offence punishable with three months of imprisonment. It is not an offence envisaged under MCOCA and, therefore, no case is made out against the accused.
State Vs. Ashwani Aggarwal & Ors. 91 of 175 158 The case of the prosecution against Chandresh Jain rests on
one telephonic conversation between Salman @ Master through mobile no.9232187803 with Ramesh Vyas on his mobile no.996770626 on 12.04.2013. The entire conversation allegedly held between Salman @ Master and Ramesh Vyas only disclosed that Ramesh Vyas had approached one Jupiter for his work and had requested Salman @ Master to make Jupiter understand that they all have to work together. The other piece of evidence is the confessional statement of Ramesh Vyas wherein he had disclosed that he came to know that Chandresh Jain @ Jupiter was a very big bookie involved in cricket match and session fixing. One Feroz took over the booking business of Mumbai and Pakistan after the death of his leader Zahid @ Chotte Miyan and he had been doing the business through Jupiter. Consequently Ramesh Vyas had also approached Chandresh Jain @ Jupiter for his work to which Chandresh Jain agreed.
159 The entire evidence against Chandresh Jain is by virtue of one phone call between Ramesh and Salman wherein he had requested Salman to talk to Jupiter to do the work. In his confessional statement Ramesh Vyas had disclosed having come to know that Chandresh Jain was a mega bookie and accused Firoz, a bookie of Mumbai was also operating. He also approached Jupiter @ Chandresh Jain for his business.
160 This confessional statement and the conversation merely indicated that Chandresh Jain @ Jupiter was known to be a major State Vs. Ashwani Aggarwal & Ors. 92 of 175 bookie. However, there is not an iota of evidence collected by the prosecution to show the actual operations of Chandresh Jain from where it could be even prima facie established that he was in fact a mega bookie. Mere claim by Ramesh Vyas without there being any other cogent evidence, cannot be sufficient to hold Chandresh Jain @ Jupiter to be a major bookie. Also, there is no phone calls between Chandresh Jain and Salman or any other person of the under world from where it could be even prima facie concluded that Chandresh Jain was in touch with any member of the organized crime syndicate, be it Dr. Javed Chutani, Chotta Shakeel or Dawood Ibrahim. Rather, this name has featured in one call between Ramesh Vyas and Salman, but there is no evidence to show that Salman was a member of the crime syndicate of DawoodChhota Shakeel. The only inference that can be drawn from the evidence on record is that the accused Ram Vyas had independently approached Jupiter for his business. This, in itself does not make Chandresh Jain linked to the crime syndicate or guilty of any offence under any of the provisions of penal statute. No prima facie case is made out against accused Chandresh Jain.
Amit Kumar Singh 161 Written arguments have been submitted by Accused no.9 Amit Kumar Singh wherein it is submitted that as per the prosecution, ac cused Amit Kumar Singh introduced one of the coaccused Manan U. Bhatt with cricketer Ajit Chandila with the motive of involving him in spot fixing. The alleged call detail records of his proves his link with State Vs. Ashwani Aggarwal & Ors. 93 of 175 the other accused Chandresh Patel, P. Jiju Janardanan, Ajit Chandila and Jitender Kumar Jain. It is asserted that Amit Kumar Singh was a player/fixer who was allegedly introducing other cricketers with the help of bookies for spot/session fixing and was found visiting Jaipur, Kolkata, Mumbai, along with aforementioned accused persons. Wit ness Siddharth Kumar Trivedi in his statement under 164 Cr.P.c stated that after IPL got over in the year 2010, accused Amit Kumar Singh had introduced him to one Tomy in Ahmedabad and he agreed for spot fixing and accepted Rs. 1,00,000 from Tomy through Amit Kumr Singh, but because he was unable to perform in IPL 2011, he volun tarily returned the amount to Tomy through this accused. Further, it is alleged by the prosecution that 3 mobile phones were recovered from the possession of accused Amit Kumar and there are four telephonic conversations with Jiju Janardanan, Jitender Kumar Jain and Ajit Chandila etc. There are also three disclosure statements dated 16.05.2013, 19.05.2013 and 20.05.2013, but he has not made any confessional statement.
162 It is argued that from the evidence that has been placed by the prosecution in the charge sheet, there is no evidence to suggest that he was working for organized crime syndicate. The alleged telephonic conversation are also with the players and not with the core members State Vs. Ashwani Aggarwal & Ors. 94 of 175 of the organized crime syndicate. Furthermore, there is no money re covered from the accused at any point of time and there is no docu mentary evidence to show that he was involved in money transactions in any manner. Statement of witness Siddharth Trivedi under 164 Cr.P.C claims of transaction of 1,00,000 but the said money was never recovered. Moreover, why would the accused take Rs.1 lac, once the IPL 2010 was over and no match was to be played in 2010. Further this Tommy has neither been investigated nor arrested nor his identity is established. It is thus, argued that there is no nexus estab lished between this accused and the other accused persons to show that he is a member of organized crime syndicate and thus, he is enti tled to be discharged.
163 It is the case of the prosecution that Amit Kumar Singh was a player/fixer, who was known to P. Jiju Janardhan, Ajit Chandila and Ji tender Kumar Jain and had been visiting with these persons various States, where IPL matches were being played. It was also claimed that he had approached the witness Sidharath Kumar Trivedi, a cricket player after IPL match got over in the year 2010 and offered him money for spot fixing. This entire evidence even if accepted only shows that he was a fixer and had been approaching various cricket players along with other accused to induce him to agree to spot fixing.
This does not establish any link between him and the Core Syndicate.
He is not shown to be a member of Core Crime Syndicate. He may be one of the many, who had been independently indulging in spot fixing State Vs. Ashwani Aggarwal & Ors. 95 of 175 of players along with other co accused but that is not sufficient to make him a part of Core Crime Syndicate. His activity of attempting to spot fix does not come within the ambit of cheating, as is discussed later. The entire evidence of prosecution even if admitted at this stage, without any proof, does not disclose any prima facie case under any law against the accused.
Chandresh Patel 164 The case of the prosecution against accused Chandresh Patel is that he was arrested on 16.05.2013 from Mumbai alongwith six other coaccused persons. At the time of arrest 34 mobile phones were recovered from him. It was found that one mobile phone had been obtained fraudulently by him on other person's identity.
165 During the investigation, it was revealed that he had visited Kolkata, Mumbai, Jaipur, Pune and Mohali for fixing their spot/session fixing. He had stayed with coaccused Amit Kumar, Manan U Bhatt, Sunil Bhatia, Kiran Dhole and others at hotel Royal Orkit in Jaipur. He had also stayed at Hotel Marriot, Jaipur in AprilMay, 2013. It has been found that he had gifted two watches to Ajit Chandila. The inter cepted calls between him and a bookie show that he was having full control over Ajit Chandila and Sreesanth. It has been further revealed that he had visited Sri Lanka alongwith Jitender Jain and Praveen for fixing the players there. The confessional statement of accused Jiten der Jain u/s 8 MCOCA also proves the same. The analysis of mobile State Vs. Ashwani Aggarwal & Ors. 96 of 175 phone recovered from his possession has revealed that he was deeply involved in the activity of the crime syndicate and was found operating online betting actions, both local as well as off shore, in hawala transaction and also participating in fixing the players.
166 Ld. Counsel on behalf of the accused has argued that there is no document to show that he had obtained the mobile phone on fake identity. Even if it is accepted that he was fixing the players, but the evidence on record clearly shows that the fixed overs never materialized. Further, the requirement for invoking MCOCA is two FIRs in the preceding 10 years which is admittedly not satisfied in the case of this accused. It is therefore, argued that no offence is prima facie made out against the accused.
167 The entire evidence collected by the prosecution to the effect that Chandresh Patel was friendly with the coaccused Amit Kumar, Manan U. Bhatt, Sunil Bhatia, Kiran Dhole and had been meeting them in hotels. He had also been visiting various places allegedly for purpose of spot and session fixing. Merely being friends with other co accused and visiting places with them cannot lead to any conclusion that the same was for the purpose of match fixing. Likewise, giving gifts to the players or being close to coaccused Ajit Chandila and Shreesanth cannot lead to any inference of any fixing of matches. Even if it is accepted that he was operating online betting actions and was participating in fixing the players then too as already discussed above these activities do not qualify as the penal offence under any statute. Moreover, the prosecution has sought to invoke MCOCA against him for which it was necessary to show that he had some link with the crime syndicate of Chhota ShakeelDawood. The entire evi State Vs. Ashwani Aggarwal & Ors. 97 of 175 dence doesn't speak of his having any nexus association or commu nication with the syndicate directly indirectly or even remotely. No of fence is prima facie disclosed against this accused even if the entire evidence of prosecution is admitted without any formal proof.
Ajit Chandila 168 In the written submissions submitted on behalf of Ajit Chandila as well as in the arguments addressed in the court, the first ground on which the case of the prosecution is challenged is that the ingredi ents of MCOCA are not satisfied in relation to accused Ajit Chandalia, First and foremost, there has to be a continuing unlawful activity as defined under Section 2(e) of the Act. The offence which is being al legedly committed is match fixing which in itself is not an unlawful ac tivity. Furthermore, has has been held in the case of Ranjit Singh (Supra) in order to invoke MCOCA mens rea is necessary. The en tire case of the prosecution against accused Ajit Chandila does not even prima facie show that accused Ajit Chandia was having the nec essary mens rea or the knowledge that the persons with whom he was interacting were part of organized crime syndicate. It has been held in the said case that communication or association with any per son must be with the actual knowledge or having reason to believe that he is engaged in assisting the organized crime syndicate. The necessary nexus which is a prerequisite as also provided in case of Lalit Somdutt Nagpal (supra), has not been established against he accused.
169 It is also argued that even Section 120B IPC is not applicable as Ajit Chandalia has neither done any illegal activity nor any other activity by illegal means. Ajit Chandalia was arrested on State Vs. Ashwani Aggarwal & Ors. 98 of 175 16.05.13. During the scrutiny of mobile numbers of Sunil Bhatia and Kiran Dole, the underworld conduit cum henchmen, it was revealed that they both were in touch with Ajit Chandalia through mobile num bers 7567094514, 9711724141, 9899999319 (which is subscribed in his name) and 93807_____ that were being used by him. These mo bile numbers were taken on lawful interception and it was established that Sunil Bhatia and Kiran Dole were in touch with Ajay Chandila dur ing IPL 6 through other crickets namely Manish Guddewar (979954607number) and Babu Rao Yadav (9096078576). The con tinuous monitoring of intercepted numbers further revealed that Ajit Chandalia was also in touch with many bookies and was receiving huge amounts of money in lieu of spot/session fixing. The lawful inter ception led to accused Chand Bhai (916050055) and accused Manan Bhat (8758833324 and 9998288555), who were also found to be fix ing Ajit Chandalia and other players of Rajasthan Royals in lieu of money, girls and gifts. The monitoring of Ajit Chandalia's number fur ther led to coaccused Babu Rao Yadav (9555555518) who in turn was found linked with money financer Vicky Chaudhary, Vinod Sharma and Nitin Jain, all three are coaccused in this case. It has been further established through interceptions that Ajit was also in touch with another fixer from Punjab namely Deepak who is also a coaccused. Deepak in turn was found linked with Rakesh @ Rocky and Sandeep Sharma @ Sandi both of whom were financers for above said Deepak.
170 It is further submitted that on the basis of the disclosure state ment made by Accused Ajit Chandila and coaccused Chandresh Pa tel, two watches were recovered which were gifted to Ajit Chandela by Chand, the fixer as part of advance for spot fixing. The Payment State Vs. Ashwani Aggarwal & Ors. 99 of 175 receipts collected from the stores from where these watches were purchased shows that the payments were made by Chand @ Chan dresh Patel. Further, the record bills of Hotel JW Marriot, Jaipur of April 2013, establish that he had stayed there as member of Ra jasthan Royals team, along with accused Chandresh Patel and others to plan and execute spot fixing during IPL 6 cricket matches. Ajit Chandela has also disclosed that he had been gifted expensive sun glasses in 2012, by Sunil Bhat which he had purchased from Khan Market, Delhi. Ajit Chandalia also disclosed having received Rs. 12 lacs from Sunil Bhatia in spot fixing in IPL5 in 2012, but he was forced to return the said money to Sunil Bhatia since he was unable to pro vide the requisite under performance to which he had agreed. During the investigations, one cheque of 4 lacs was found to be debited in the account of Sunil Bhatia. Two more cheques of Rs. 4 lacs each were recovered from Sunil Bhatia at the time of his arrest and both these cheques were found to have been dishonored due to insuffi cient funds.
171 The prosecution has also relied on the confessional statement of Sunil Bhatia under Section 18 of MCOCA, wherein Sunil Bhatia had stated that in IPL, 2012 Ajit Chandila had taken a lot of money from Tinku through Hawala, but he failed to perform on some occa sions despite which he did not return the money. Sunil casually men tioned this to Tinku, who in turn called up Javed Chautani in Pakistan and requested to speak to Chota Shakeel in this regard. He also gave Ajit's number to Javed Chutani. From this, he came to know that he was having links with the underworld. It was thus, concluded that the State Vs. Ashwani Aggarwal & Ors. 100 of 175 evidence proved the involvement of Ajit Chandalia in spot fixing with accused Sunil Bhatia and Ashwani Agarwal both operative of Da wood Ibrahim Chota Shakeel syndicate and that he was aware of the fact that his associates were linked with under world.
172 It is further alleged that during investigations Ajit Chandalia had disclosed to have met accused Kiran Dhole in Delhi before IPL 6 and demanded Rs. 25 lakhs to which Kiran Dhole agreed. However, he failed to perform as per the demands of his fixers, Sunil Bhatia and Ki ran Dhole who threatened him to return the money. Thereafter, Sunil Bhatia called Ashwani Agarwal and thereafter Ajit Chandila had to re turn Rs.20 lacs. Sunil Bhatia had also disclosed that he had arranged a meeting of Ajit Chandalia with Tinku before IPL 6 and Rs.25 lakhs were given through Hawala by Tinku. However, he did not give the requisite signals in the matches that were played and Ajit Chandalia returned 20 Lakhs in cash through one Sukharam and one Vivek, ac quaintances of Kiran Dole and sought some time to return the remain ing amount. It was thus concluded, that confessional statements of Sunil Bhatia and those of Sukharam and Vivek fully support the transfer of money to Ajit Chandela for match fixing.
173 It is argued that all this evidence that has been placed against Ajit ChandIla does not even prima facie show that Ajit Chandila had any knowledge about Ashwani Aggarwal and other persons being part of the crime syndicate run by Dawood Ibrahim and Chotta Sha keel. It is further submitted that match fixing activity is not an offence under IPC and no charges can be framed against the accused, who is entitled to be discharged.
State Vs. Ashwani Aggarwal & Ors. 101 of 175 174 The charge that is pressed against Accused Ajit Chandalia is
of being member of organized crime syndicate and being prime match fixer. The confessional statement of coaccused Sunil Bhatia makes a reference to present accused Ajit Chandalia of having taken money on two occasions for under performance, but it is mentioned in the confessional statement of Sunil Bhatia itself that on both the occa sions he did not under perform and had agreed to return the money. During IPL, 2013, out of 25 lakhs that were received by him, he had returned Rs.20 lakhs to Vivek through witness Sukharam. The state ments of witnesses Sukharam and Vivek under Section 164 Cr.P.C also confirm about the return of money. The evidence even if admitted in toto, only shows that Ajit Chandela had agreed to under perform, but he did not do so. He is not shown to have cheated anybody since he did not under perform after taking money.
175 The charge that is pressed against Accused Ajit Chandalia is of being member of organized crime syndicate and being prime match fixer. The confessional statement of coaccused Sunil Bhatia makes a reference to present accused Ajit Chandalia of having taken money on two occasions for under performance, but it is mentioned in the con fessional statement of Sunil Bhatia itself that on both the occasions he did not under perform and had agreed to return the money. During IPL 13, out of 25 lakhs that were received by him, he had returned Rs.20 lakhs to Vivek through witness Sukharam. The statements of wit nesses Sukharam and Vivek under Section 164 Cr.P.C may also con firm about the return of money, but the evidence even if admitted in toto, only shows that Ajit Chandela had agreed to under perform, but he did not do so. He is not shown to have cheated anybody since he did not under perform after taking money.
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176 Furthermore, even if the confessional statement of Sunil Bhatia
is accepted against accused Ajit Chandela, that 25 lakhs had been given to him by Major bookie Ashwani Aggarwal, but there is not an iota of evidence to suggest that Ajit Chandalia was aware of there be ing any nexus between Ashwani Aggarwal and the organized crime syndicate allegedly being run by Dawood Ibraihim and Chotta Sha keel. In order to invoke MCOCA, there has to be a link or nexus with the core syndicate which is not established. Moreover, mere agree ment to underplay in itself would not fall within the definition of "unlaw ful activity" which is also an essential ingredient for an offence to be held as organized crime. Simply receiving gifts of watches or sun glasses from coaccused Kiran Dhole can neither be held as consid eration for match fixing, nor can it be termed as any crime. Accused Ajeet Chandila may have been shown to be knowing Kiran Dole and others, but there is no evidence whatsoever to show that he was hav ing any knowledge of association of Sunil Bhatia, Ashawani Aggarwal and others if at all with the core syndicate. In the absence of there be ing any nexus of Ajit Chandalia with core crime syndicate, no offence of being a member of organized crime syndicate punishable under section 3 of MCOCA is made out. Though in the confessional state ment of Sunil Bhatia there is a mention of 25 lakhs being transferred to Ajit Chandalia through Hawala, but there is no evidence to this ef fect on record. Ajit Chandalia may have returned Rs.20 lakhs, but there is no proof of the same except the statements of two witnesses namely Sakharam and Vivek. Even if it is accepted that Rs.20 lakhs were returned by Ajit Chandila, there cannot be any inference drawn that this was a part of Hawala transaction. No prima facie case State Vs. Ashwani Aggarwal & Ors. 103 of 175 against Ajit Chandila for any of the offences under IPC or MCOCA are made out.
Vikas Chaudhary @ Vicky, Nitin Jain @ Susu, Vinod Sharma @ Sonu and Bhupender Nagar 177 The case of the prosecution against accused Vikas Chaudhary @ Vicky, Nitin Jain @ Susu, Vinod Sharma @ Sonu and Bhupender Nagaris that they were involved in spot fixing in IPL 6. Accused Bhupender Nagar was arrested on 27.05.2013 from Noida, U.P. He was found to be working as a bouncer at Jynxx Club at Hotel Eros, Nehru Place, Delhi. The case of the prosecution is that he came in contact with Ajit Chandila through public witness Sukhram. Bupender Nagar thereafter, arranged meetings of bookies namely Nitin Jain, Vikas Chaudhary @ Vicky and Vinod Sharma with Ajit Chandila in Jaipur and Delhi for the purpose of spot fixing.
178 Investigations revealed that on few occasions Ajit Chandila gave tips relating to match condition, pitch, playing eleven etc to Bhupender Nagar and other accused named above after accepting money and they earned a profit of Rs.90 laks through him. Accused Bhupender Nagar also earned Rs.5 lakhs on account of these tips. Rs.50,000/ were recovered from Bhupender Nagar who was alleged to be part of proceeds of crime. Remaining proceeds were shared by Nitin Jain, Vikas Chaudhaary and Vinod Sharma. A sim card was also recovered from Bhupender Nagar. The intercepted calls between Ajit Chandila, Nitin Jain, Vikas Chaudhary, Vinod Sharma and accused Bhupender Nagar show their nexus in spot/session match fixing. This is also corroborated by their presence together in hotels in Jaipur, Delhi and Rajasthan. This clearly proves that Bhupender State Vs. Ashwani Aggarwal & Ors. 104 of 175 Nagar was involved in spot fixing in IPL6 along with other accused persons. It is also alleged that the investigation reveal that Vinod, Vikas and Nitin had given Rs.8 lakhs in cash to Ajit Chandila through Bupender Nagar.
179 The only evidence that the prosecution has been able to present against these four accused is that they all had approached Ajit Chandila and had paid him Rs.8 lakhs for spot fixing and also that they had given information about pitch condition etc and earned about Rs.90 lakhs by way of tips that were shared by them. Again, the allegations against these four accused are conjectural for the only evidene that the prosecution is of meeting between these people and Ajit Chandila. The other allegation of giving information and giving of Rs. 8 lakhs cash to Ajit Chandila in the alleged match fixing is purely conjectural and not based on legally admissible evidence. Even if it is accepted that they had approached Ajit Chandila for match fixing, but there is nothing to show that they were working as a part of organized crime syndicate or had any nexus whatsoever with any of the bookies who were the coaccused in this case. No offence under any statute is made out against any of thee four accused.
Manan U. Bhatt 180 The case of the prosecution against accused Manan U Bhatt who was arrested on 16 May, 2013 from Mumbai, is that he was a bookie/fixer who had contacted Ajit Chandila through another cricketer / accused, Amit Kumar. Two mobile phones that were used by him in commission of offence, were recovered. During investiga tions, it was revealed that he had visited various places in India for the State Vs. Ashwani Aggarwal & Ors. 105 of 175 purpose of spot fixing. Further, the intercepted calls reveal that he along with Chandresh Patel, used to arrange girls for Ajit to influence and allure him in spot fixing. Investigations also revealed that he had stayed in Faridabad, Haryana for meeting accused Chandila. There is also evidence to show that he used to sit in the stadium and pass on live information of spot fixing by giving signals to coconspirators. The data collected from the several phones that were recovered from his personal possession, revealed that he was deeply involved in Hawala transactions and had also been approaching international players in an attempt to compromise them into this fixing syndicate.
181 Ld. Counsel on behalf of accused has argued that the disclosure statements of the accused are inadmissible under Section 23 of Indian Evidence Act. The mobile phones had been recovered before the disclosure statements and therefore, cannot be held ad missible under Section 27 of Indian Evidence Act. It is argued that the only evidence that emerges against him is that he had been arranging air tickets for various players but that in itself does not establish any case against him. Furthermore, the calls intercepts are not supported by the certificate u/s 65B of Indian Evidence Act. No confessional statement had been made by him which can be read in evidence against him. Therefore, there is no prima facie case disclosed and he is entitled to be discharged.
182 The allegations of the prosecution against him are that he had been arranging gifts etc for various players and that he used to remain present during the matches in the stadium to pass on live information of spot fixing. However, there is no legally admissible evidence in this State Vs. Ashwani Aggarwal & Ors. 106 of 175 regard whatsoever to show that he was involved in passing of information except his disclosure statement which is inadmissible.
Further even if it is accepted that he was indulging in these activities, then too, there is no evidence whatsoever to show that he was acting as member of the Crime Syndicate. There is no evidence to show that he had the requisite mens rea to be considered as a member. He is also not shown to be having any communication or association with the Crime Syndicate. Buying of gifts and making travel arrangements for the players may show that he was known to the players. But from this, no penal offence under any statute including MCOCA is prima facie disclosed against this accused.
S. Shreesanth, Jiju Janardhan and Abhishek Shukla 183 The case of the prosecution against accused S. Shreesanth as summarized in pages 309 to 322 of the charge sheet, are that accused P. Jiju Janardhanan @ Jiju close friend of S. Shreesanth persuaded him to participate in spot fixing in lieu of payment of Rs.60 lacs in cash in exchange of which S. Shreesanth was to concede 14+ runs in one over in a match between Kings XI Punjab and Rajasthan Royals, to be played at Mohali on 09.05.2013. Pursuant to this conspiracy, Rs.10 lacs as advance was given by P. Jiju Janardhanan to S. Shreesanth in first week of May, 2013. As per the plan, Sreesanth was to give a signal by tucking his handtowel in his trouser and by doing some stretching exercise which would act as a signal before the fixed over. Despite best efforts, S. Shreesanth could State Vs. Ashwani Aggarwal & Ors. 107 of 175 concede 13 runs in the said over. Intercepted calls of bookies show that they appreciated the efforts that S. Shreesanth had put during the said over.
184 It is the case of the prosecution that from the advance money that was paid to S. Shreesanth, he purchased two mobile phones from Jaipur and gave them to his two friends Sakshi Jhala and Deepika, which were later on recovered from them. Rs. 1.93 lacs were spent by him at Diesel Store, at Juhu, Mumbai to buy clothes on 14/15.05.2013. The amount of Rs. 5.5 lacs were allegedly removed by coaccused Abhishek Shukla.
185 In order to corroborate these assertions, the prosecution has relied upon the intercepted calls between accused P. Jiju Janardhanan and S. Shreesanth as well as between P. Jiju Janardhanan and various other bookies and also inter se conversations between the bookies.
186 The allegations of the prosecution against accused P. Jiju Janardanan @ Jiju who was arrested on 16.05.2013 from Mumbai, is that he is a close friend of accused S. Sreesant of Rajasthan Royals and had stayed with him at MRF Polo Academy, Chennai where both of them had done training during 20012003 P. Jiju Janardanan @ Jiju himself was a cricketer and had played for Gujarat at which time he became a close friend of accused Amit Kumar Singh. It is alleged that during IPL6, Amit Kumar Singh approached P. Jiju Janardanan @ Jiju to involve S. Sreesanth in spot fixing in lieu of Rs. 60 Lakhs per performance. Accused P. Jiju Janardanan @ Jiju had State Vs. Ashwani Aggarwal & Ors. 108 of 175 succeeded in persuading S. Sreesant as per the wishes of the Syndicate during the match played between Kings X1 Punjab and Rajasthan Royals, for consideration of Rs. 60Lakhs.
187 In the first week of May, 2013 P. Jiju Janardanan @ Jiju took Rs. 10 Lakhs in cash from Chandresh Patel at J.W Mariot Hotel at Jaipur, Rajasthan. From this amount he purchased two mobiles phones for S. Sreesanth, who in turn gave them to his two girl friends namely Shakshi Jhala and Deepika who were both resident of Jaipur. P. Jiju Janardanan @ Jiju and accused Sreesanth also spent 1.93 Lakhs for purchasing clothes in a store at Mumbai. It is alleged that after S. Sreesant was arrested P. Jiju Janardanan @ Jiju managed to remove unspent cash with the help of coaccused Abhishek Shukla from his hotel Sofitel room.
188 The prosecution has tried to cement these assertions by intercepted calls between S. Sreesanth and P. Jiju Janardanan @ Jiju who were discussing about Rs. 3 Lakhs to be retained by P. Jiju Janardanan @ Jiju while Rs. 7 Lakhs to be taken by S. Sreesanth. Besides this, the prosecution has relied upon other intercepted calls to establish his deep involvement in IPL6 spot and session match fixing.
189 Accused Abhishek Shukla was arrested on 28.05.2013. He is claimed to be a friend of accused S. Sreesant and P. Jiju Janadanan. It is claimed that when S. Sreesanth and P. Jiju Janardanan were arrested, he removed the proceeds of spot fixing i.e Rs.5.5 lakhs from their room at Hotel Sofitel, Mumbai and retained the same with himself. This cash of Rs.5.5 lakhs was recovered from his Flat No.3, State Vs. Ashwani Aggarwal & Ors. 109 of 175 Vabhibari Cooperative Housing Society, No.4 Bunglow, Church Lane, West MumbaI. Also, CCTV footage recorded on 16.05.2013 of Hotel Sfitel, Mumbai show that he had removed the articles from the room, after the arrest of accused S. Sreesanth. Two mobile phones were also recovered from him at the time of his arrest. The scrutiny of call details show that he was in constant contact with accused S. Sreesant and P. Jiju Janardanan. He had also accompanied accused S. Sreesant and P. Jiju Janardanan to Diesel Store, Mumbai for shopping. It is claimed that the continuous presence of accused Abhishek Shukla at various match venues shows his close link with accused S. Sreesant and P. Jiju Janardanan.
190 It has been argued that there is not a single statement under Section 161 Cr.P.C or any intercepted phone call between P. Jiju Janardhanan and S. Sreesanth that could indicate that P. Jiju Janardhanan had persuaded S. Shreesanth to participate in the act of spot fixing or that S. Shreesanth had consented to concede 14+ runs in the fixed over. Furthermore, there is not a single phone call conversation between S. Shreesanth and any other alleged bookie or the so called member of organized crime syndicate. The only incriminating evidence relied upon by the prosecution is the conversation between P. Jiju Janardhanan and Chandresh Patel @ Chand (Bookie) wherein P. Jiju Janardhanan was telling Chandresh Patel that "He is little stubborn about this. He is playing after a long time and he is risking time.... maine usko samjha diya, but he did not want to take risk". This conversation is of 9th May, 2013 at 12.13 P.M and is, therefore, closest to the point of time to the match in question. This clearly reveals the intention of S. Shreesanth.
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191 In Dr. Arup Kumar Srivastava vs. CBI Crl.M.C 4360/2012
decided on 21.11.2013 it was held by Hon'ble High Court of Delhi that all calls must be corelated and if one call demolishes the content of other incriminating call, the benefit of the same should be given to the accused. It was thus, argued that there is not an iota of evidence to show that there was an agreement for payment of Rs.60 lacs to S. Shreesanth for fixing an over by conceding 14+ runs in the match to be played on 09.05.2013. There is also no evidence whatsoever to show that an amount of Rs.10 lacs had been handed over to P. Jiju Janardhanan by the bookies, which in turn was handed over by him to S. Shreesanth. The conversation between P. Jiju Janardhanan and S. Sreesanth are innocuous and are not suggestive that any money came from the so called spot fixing fund. All that S. Shreesanth was asking P. Jiju Janardhanan to do was to buy two cellphones.
192 It is further argued that in so far as tucking of towel in the pants and doing stretching exercise in an over is concerned, S. Shreesanth regularly did so as generally other players all over the world, do. It is further argued that the alleged conversation between Chandresh Patel and Jitender Kumar Jain @ Jeetu Tharad is only for conceding of 14+ runs in a given over, but there is no mention of the same pertaining to S. Shreesanth. It was further stated that if 13 runs were conceded, then the deal would be cancelled. As it turned out, S. Sreesanth gave away only 13 runs and even if the case of the prosecution is accepted, the deal was not fulfilled.
193 It was further argued that the detailed analysis of the over in
State Vs. Ashwani Aggarwal & Ors. 111 of 175
question would show that S. Sreesanth had bowled a legal and competent over, as in the first four balls, only five runs were conceded. The first and third delivery were dot balls and only one run was conceded in the fourth ball. No extra run was conceded on account of wide, no ball etc. 194 It is further argued that S. Sreesanth had signed the IPL contract for which he was to earn 1 Crore 84 Lacs in the session in question. On 03.04.2013, his account balance in HSBC Bank was Rs.36,23,101/ and his total ATM cash withdrawn for the period April, 2013 was over Rs.10 lacs. In the given scenario, no presumption could be raised that the purchase made by the S. Shreesanth were from the advance received from the bookies or that such expenses were not made from his legally earned income.
195 It is further argued that the recovery of Rs.5.5 lac from the house of Abhishek Shukla is sham and it is the disclosure statement masquerading as seizure/recovery memo. At best, it can be said that Rs.5.5 lacs were recovered from him, but that recovery cannot be connected to S. Shreesanth on the basis of disclosure statement of Abhishek Shukla.
196 It has been further pointed out that the call detail records of mobile number of S. Shreesanth and P. Jiju Janardhanan had material discrepancies and also these conversations have been intercepted in violation of Section 5 of Telegraph Act and per se not admissible as has been held in the case of State of U.P vs. Singhara Sinh & Ors. AIR 1964 SC 358. Moreover, intercepted conversations are not State Vs. Ashwani Aggarwal & Ors. 112 of 175 substantive evidence but only corroborative in nature. In Mahabir Prasad Verma vs. Dr. Surinder Kaur (1982) SCC 258 it was held that the tape recorded conversations are only corroborative and in the absence of evidence of any such conversation, the same cannot be held to be proper evidence and cannot be relied upon. Further more, the disclosure statement of Jitender Kumar Jain and Abhishek Shukla are inadmissible against S. Sreesanth. Likewise, the disclosure statements of S. Sreesanth are inadmissible by virtue of Section 25 and 26 of Indian Evidence Act, as has been held in the case of Aghnoo Nagesia vs. State of Bihar AIR 1966 SC 199. It is thus, argued that there is no prima facie evidence to show that S. Shreesanth was a part of the organized crime Syndicate or was involved in any continuing unlawful activity. No previous charge sheet of any offence has been filed against him and there is no evidence to infer any conspiracy between him and P. Jiju Janardhanan. It is, therefore, argued that S. Shreesanth is entitled to be discharged.
197 Similar arguments have been addressed on behalf of Jiju Janardhan and Abhishek Shukla.
198 As already discussed above, in order to invoke Section 3 and 4 of MCOCA against the accused S. Shreesanth, Jiju Janardhan and Abhishek Shukla, the first requirement is that they must be shown to be members of the Organized Crime Syndicate. As per the prosecution the organized Crime Syndicate were being run by Dawood and Chotta Shakeel for carrying out various unlawful activities of murder, exhortation, terrorism and money laundering. The prosecution in order to invoke MCOCA was first required to show State Vs. Ashwani Aggarwal & Ors. 113 of 175 some nexus or link between the crime syndicate and the accused S. Shreesanth. The only link that has been shown is P. Jiju Janardhanan. However, the conversation between P. Jiju Janardhanan and S. Shreesanth does not show that P. Jiju Janardhanan had approached S. Shreesanth for fixing the over or that it was done as a part of activity of crime syndicate run by Dawood and Chotta Shakeel. Furthermore, it has been rightly pointed out by the Ld. Counsel for the accused that the conversation between P. Jiju Janardhanan and S. Shreesanth are innocuous and do not in any manner reveal the conspiracy of fixing the over. The conversation dated 09.05.2013 between Chandresh Patel and P. Jiju Janardhanan in fact, clinches the issue for it is evident from the conversation that S. Shreesanth was not willing to fix the over since he had come to play the game after a long time and was not willing to take a risk. This is further confirmed from the fact that the alleged fixed over ended upto in 13 runs as against the agreed 14+ runs. As per the conversation between Chandresh Patel and Jitender Kumar Jain @ Jitu the deal for alleged payment of Rs.60 lacs was to stand cancelled in case less than 14 runs were conceded. As has been argued, there were only 13 runs conceded and thus, deal, if any, was never given effect to.
199 The other evidence on which the prosecution has relied is the disclosure statement of S. Shreesanth which are per se inadmissible under Section 25 and 26 of Indian Evidence Act. As rightly argued, mere recovery of Rs.5.5 lacs from the house of Abhishek Shukla cannot connect the accused S. Shreesanth with the said recovery and no conclusion prima facie can be drawn that it was part of Rs.10 lacs that were allegedly given as advance for playing the State Vs. Ashwani Aggarwal & Ors. 114 of 175 fixed over.
200 The prosecution has alleged that P. Jiju Janardanan @ Jiju was the conduit to fix S. Sreesanth for which it has relied on two telephonic conversations of 6.5.2013. The content of first conversation show that S. Sreesant asked P. Jiju Janardanan @ Jiju to buy three phones and P. Jiju Janardanan @ Jiju stated:
"3 chahiye, OK , Mein dekhta hoon........ baki laga dega......... paisa kyon kharch karna hain .......... Abhi das hai............ teen leta hoon .............7 yahi rakha hai , 7 tere ko de dunga , kab chahiye batana."
201 The second conversation is only to decide the model of 2 mobile phones that were to be purchased.
202 The only implication that can be drawn from these conversations is that P. Jiju Janardanan @ Jiju was having ostensibly Rs. 10 Lakhs from which he agreed to bring Rs. 3 Lakhs for making purchases including that of three mobile phones that were requested to be purchased by S. Sreesanth. While he agreed to retain seven lakhs to be given subsequently. The maximum inference that can be drawn is that P. Jiju Janardanan @ Jiju was having only Rs. 10 Lakhs, out of which he agreed to make purchases from 3 Lakhs while Rs. 7 Lakhs were to be retained for the future. This in itself does not remotely show that P. Jiju Janardanan @ Jiju had accepted Rs. 10 Lakhs for and on behalf of S. Sreesanth for the purpose of match fixing. The evidence against P. Jiju Janardanan @ Jiju neither shows that he was involved in fixing S. Sreesanth or of accepting Rs. 10 State Vs. Ashwani Aggarwal & Ors. 115 of 175 Lakhs from any bookie. There is absolutely no evidence against P. Jiju Janardanan @ Jiju to show that he was involved or was a conduit in fixing S. Sreesant to play a fixed match. Also, there is no nexus shown of P. Jiju Janardanan @ Jiju with any of the bookies who were allegedly in touch with Doctor Javed Chutani, who was a part of the alleged organized crime syndicate of Dawood or chotta Shakeel. Neither the offence under MCOCA or under any section of IPC or any other Law is primafacie is made out against P. Jiju Janardanan @ Jiju.
203 In so far as the accused Abhishek Shukla is concerned, he is shown to be a close friend of accused S. Sreesanth and P. Jiju Janardanan and had been staying with them at Hotel Sofitel. He had accompanied them for shopping. The only allegation against him is that Rs.5.5 lakhs were recovered from his house which were infact, removed by him from the room of hotel Sofitel of accused S. Sreesanth, when he was arrested. These allegations in itself without there being anything else can by no stretch of imagination, be termed as any evidence under any law. The prosecution had claimed that these Rs.5.5 lakhs were part of the money that had been accepted by accused S. Sreesanth for agreeing to play a fixed over. However, as already discussed above, the alleged over that was claimed to have been agreed to be fixed was in fact not played according to the agreement. S. Sreesanth admittedly could not give 14 runs to which he had allegedly agreed. There is nothing to show that accused Abhishek Shukla was a coconspirator with S. Sreesant or had indulged in any criminal activity. Even if the case of the prosecution is accepted that accused Abhishek Sukla had removed Rs.5.5 lakhs State Vs. Ashwani Aggarwal & Ors. 116 of 175 belonging to accused S. Sreesant and had kept the said amount, then too this does amount to any offence. It also does not show that he was in any way connected with the crime syndicate allegedly indulging in betting and match fixing in an organized way. No offence whatsoever is made out against accused Abhishek Shukla.
204 The entire evidence as placed against Jiju Janardhan, Sreesanth and Abhishek Shukla only shows that Sreesanth was approached by Jiju Janardhan to play a fixed over at the behest of Chandresh Patel but the same did not happen and Sreesanth had also refused to play the fixed over. No evidence whatsoever is placed on record to show that they were in communication with or associated with organized crime syndicate and were the abettors of the crimes allegedly being committed by the syndicate.
205 At the point of repetition, it may also be pointed out that the other essential ingredient for invoking MCOCA is that there should be "continuing unlawful activity" which means that there should be some nexus shown between these three accused and the alleged crime syndicate, which is wanting. Also, there should be atleast two charge sheets in preceding ten years in regard to offence punishable with the sentence of three years or more and in which cognizance must have been taken by the Court of competent jurisdiction. There is not even a single criminal case that has been registered against the accused S. Shreesanth, Jiju Janardhan and Abhishek Shukla prior to the present case. In the absence of this and of nexus with the crime syndicate, it cannot be said that he was indulging in continuing unlawful activity.
State Vs. Ashwani Aggarwal & Ors. 117 of 175 206 Even if the entire prosecution as produced against accused S.
Shreesanth, Jiju Janardhan and Abhishek Shukla by the prosecution is admitted, then too no prima facie case in any offence including Section 3 MCOCA is made out against the accused persons and they are entitled to be discharged.
Ankit Chavan 207 The case of prosecution against Ankit Chavan is that the investigations revealed that he was an employee of Air India and was playing for Rajasthan Royals in IPL6. He was involved in spot /session fixing on 15.05.2013 in a match between Rajasthan Royals and Mumbai Indians at Mumbai and had taken Rs.60 lakhs in cash in lie thereof . He had met Bookie Jitender Jain through Chandresh Pa tel to join in the conspiracy of spot fixing in lieu of heavy considera tion. He was arrested on 16 May, 2013, at Mumbai. Witness Sidharth Trivedi in his statement under Section 164 CrPC had disclosed that Ankit Chavan along with other players, used to go for parties together. Likewise witness, Harmeet Singh in his statement under Section 164 CrPC. had disclosed that Ajit had informed that Ankit and Sreesanth were their people and they would do it. Statement of theses two wit nesses also support the allegations of spot fixing against him. It is fur ther claimed that in the month of March, 2013 he had met Kiran Dhole, Ashwani Aggarwal, Ajit Chandila in Delhi which was for spot session fixing. It is further submitted that 3 mobiles phones were also discovered from him. Scrutiny of call details of these numbers show that he had the links with the bookies. Also, the intercepted voice calls State Vs. Ashwani Aggarwal & Ors. 118 of 175 amongst Ankit Chavan, Ajit Chandila and Chandresh and others also show that he had agreed to participate in spot fixing.
208 It is further submitted that Shri Rahul Dravid, captain of Rajasthan Royal and Satyan Saraswat, Chief finance officer of Ra jasthan Royals, Shri Raghu Iyer, Chief executive officer of Rajasthan Royals and Shri Prashant Bhardwaj have stated that they have been cheated by this player who made them believe that he would perform to the best of his ability. It is thus, submitted that Ankit the player had agreed to fixing of a match for a consideration at the behest of book ies who were part of crime syndicate.
209 Learned counsel for accused has argued that the entire evidence as collected by prosecution does not point out that Ankit Chavan was a member of crime syndicate. Also, there is no evidence to show that he had underplayed the match and had taken Rs 60 laksh in lieu thereof. Mere intercepted calls without being supported by any actual facts of spot fixing cannot make out a case against the accused.
210 The allegations of prosecution against Ankit Chavan, who is a cricket player, is that he had taken Rs.60,00,000/ and had under played in a match in IPL6 in lieu thereof. This made his team captain Rahul Dravid and other officers and members of public feel cheated by this player, who did not perform to best of his ability. First and foremost, the call intercepts may show that he was known to Ajit Chandila and Chandresh Patel and had even met Jitender Jain, the bookie but there is no proof whatsoever to show that Rs.60,00,000/ State Vs. Ashwani Aggarwal & Ors. 119 of 175 were paid to him. There is also no evidence that he did not perform in the match to the best of his capacity. Even if for the sake of arguments, it is accepted that Ankit Chavan did accept Rs.60,00,000/ but this in itself cannot lead to any inference that he did not play to best of his ability. The statements of his captain and other witnesses that he had under performed is merely conjectural without any basis.
In any case, this does not amount to cheating as defined under section 415 IPC.
211 The entire evidence against the accused Ankit even if admitted, does not make him either a member of Core Crime Syndicate nor is he shown to have committed cheating. Prima facie, no offence is made out against him.
Ramesh Vyas 212 The case of the prosecution against accused Ramesh Vyas is that the lawful interception of calls of accused Ramesh Vyas dis closed that he was an important member of the crime syndicate of Dawood Ibrahim Chota Shakeel syndicate. In a call between Dr. Javed Chutani and Tinku Mandi, it was revealed that Ramesh Vyas was operating from Mumbai on behalf of the underworld. The ac cused Ramesh Vyas was arrested on 15.05.2013 by Mumbai police in FIR No.162/13 and he was formally arrested in this case on 08.06.2013. 92 mobile phones, 18 sim cards, cash of Rs.57,750/ was recovered by Mumbai Police at the time of his arrest. Out of re covered 92 mobile phones, 30 mobile phones were found to be used State Vs. Ashwani Aggarwal & Ors. 120 of 175 by him for making contact with Pakistan. The investigation revealed that Ramesh Vyas was linked with Javed Chutani and one Salman @ Master both aides of Dawood and Chota Shakeel and also linked to many bookies in Dubai, Delhi, Mumbai and Nagpur and other states. Accused Ramesh Vyas in his confessional statement under Section 18, admitted having contacted Salman @ Master and Rehmat on the mobile numbers that was provided to him by Chandresh Patel @ Jupiter, who is a bookie and involved in match and session fixing. He also disclosed about having received a threat from mobile number 923332064488 who advised him to work honestly with Doctor and Master. He understood that the said phone was either of Dawood and Chota Shakeel. It is claimed by the prosecution that this confessional statement of accused Ramesh Vyas clearly establishes his nexus with the under world crime syndicate.
213 Learned counsel on behalf of accused has argued that no in criminating facts were revealed from his call intercepts. Further, the confessional statement made by Ramesh Vyas was retracted by him before learned ACMM who has held that the same was not voluntary. Further, the sim of mobile phone was not in his actual name and ac tual phone owner has not been interrogated. The call detail record of other accused have this number, but there is nothing to show that the said calls were made by the accused. Furthermore, these intercepted conversations, merely establish some kind of unnatural transactions, but they are vague and are not indicative of betting. At best, only Gambling Act can be invoked against the accused Ramesh Vyas, but no offence under Section MCOCA is made out against him.
State Vs. Ashwani Aggarwal & Ors. 121 of 175 214 As per the prosecution the link between crime syndicate of Da
wood Ibrahim and Chotta Shakeel was prima facie established through lawful interception of courts. However, the relied upon inter cepted calls are from the mobile phone which is not in the name of accused Ramesh Vyas. Further, as has been pointed out the call de tail records of other accused being having this number, but merely be cause this number intercepted in the call details of other accused would again not establish that the person making contact through that number was Ramesh Vyas in the absence of there being any evi dence of the said mobile phone being used by him. Furthermore, the only inference from these intercepted connections can be drawn that there were some suspicious transactions may be taken place, but none of the contents of these indicate that they pertain to betting. The prosecution has relied upon the confessional statement of the ac cused Ramesh Vyas wherein he has admitted to be in contact with Salman @ Master and Rehmat and mobile phone numbers that were provided to him by by Chandresh Patel @ Jupiter a bookie involved in match and session fixing. Ramesh Vyas as per his own confessional statement may have contacted Salman @ Master and Rehmat, but there is no evidence whatsoever to show that Salman @ Master and Rehmat were members of the core group of Dawood and Chotta Sha keel. Further his confessional statement that he had received of threat call from the given number and was advised to work honestly with Dr. Javed Chutani and Master and that he understood that the said phone was either of Dawood or Chotta Shakeel also does not es tablish his link with the organized crime syndicate. As already men tioned there is no cogent evidence to show that the mobile phone State Vs. Ashwani Aggarwal & Ors. 122 of 175 923332064488 from which the alleged threat call was received be longed to Dawood Ibrahim and Chotta Shakeel. Also this very fact that a threat had been received by him shows that he was not a mem ber of this syndicate and that he was not working for and on behalf of this syndicate. The ingredients of Section 3 of MCOCA are not prima facie established even if the entire evidence has produced by the prosecution against him is admitted. Also as discussed above his ac tivities does not qualify as an evidence under Public Gambling Act. No prima facie offence is made out against him.
Firoz Farid Ansari 215 The case of prosecution against accused Firoz Farid Ansari is that he was arrested on 11.06.2013 on the basis of lawfully intercepted calls between underworld syndicate members Salman and others. Pursuant to disclosures made by Ashwani Aggarwal and Ramesh, various raids were conducted and finally he was arrested in Mumbai on 11.06.2013. Four mobile phones which were used by him to contact coaccused person in India and abroad, were recov ered. It was found that he was a major bookie of Mumbai having di rect links with Javed Chautani, an aide of underworld don Dawood and Chota Shakeel and having links with bookies from various parts of the world. He was arrested by Mumbai police in 2012 for betting in cricket and he is facing trial. Ramesh Vyas in the confessional state ment under section 18 had revealed the involvement of Firoz, the ac cused in this syndicate of match fixing, which clearly establishes his nexus with the crime syndicate. In his confessional statement under section 18, Firoz Farid Ansari had admitted that he was an associate of Zahid, a Close aide of Dawood and Chota Shakeel who was mur State Vs. Ashwani Aggarwal & Ors. 123 of 175 dered in broad day light in Mumbai by the shooters of Chota Rajan, the underworld don. The accused Ramesh Vyas in his confessionals statement u/s 18 has also disclosed that Firoz had extended threat to him through one Ehteyshyam of Pakistan, a member of Dawood gang. There is also an intercepted call between Firoz Farid Ansari and Ehteyshyam wherein accused Firoz Farid Ansari is found to be desperate for the photograph of accused Ramesh Vyas so that he could use the same for ulterior motives. All these evidence clearly point out that Firoz Farid Ansari has close connections with crime syn dicate of Dawood and Chota Shakeel and is involved in organized crime.
216 Ld. Counsel on behalf of the accused has argued that there is no charge sheet in preceding 10 years against Firoz Farid Ansari. He has further argued that the confessional statement of co accused Ramesh Vyas and also of Firoz does not show his link with the crime syndicate. The phone call transcripts are not supported by the certificate u/s 65B of Indian Evidence Act and therefore, are not admissible in evidence. It is argued that there is no incriminating evi dence against him and he is entitled to be discharged.
217 The case against Firoz Farid Ansari is that he was an associate of Zahid, a close aide of Dawood and Chhota Shakeel and after he was murdered he took over the business. It is also revealed from the confessional statement of accused Ramesh Vyas that accused Firoz Farid Ansari has extended threats to him through one Ehteysham who was alleged to be a member of Dawood gang. The confessional statement of accused Ramesh Vyas in fact shows that he was a rival State Vs. Ashwani Aggarwal & Ors. 124 of 175 rather than the link in this crime syndicate. It has also been sought to be claimed that Firoz Farid Ansari has got threat extended to Ramesh Vyas through one Ehteysham, a member of Dawood gang. Firstly, there are no details of any kind to show that Ramesh Vyas had received any threat by Ehteysham except his own statement. Further, there is not a trace of evidence that Ehteysham who is claimed to be a member of Dawood gang residing in Pakistan. Statement of Ramesh Vyas to this effect cannot be considered in evidence what to talk of sufficient evidence. The prosecution case itself shows that Firoz Farid Ansari and Ramesh Vyas were rivals. Even if the arguments of Ld. PP is accepted that Ramesh Vyas and Firoz Farid Ansari were mega bookies operating in Mumbai then too it is evident that they were rivals and were not part of same syndicate. There is no link of Firoz established with the crime syndicate so as to make him a member and therefore, liable to be trial u/s 3 MCOCA. The evidence as collected by the prosecution against him does not establish a prima facie case under any of the sections under law.
Babu Rao Yadav 218 The allegations against accused Babu Rao Yadav, an exRanji player who was arrested on 21.05.2013, is that he was facili tating underworld hench man Sunil Bhatia by introducing him to crick eter Ajit to rope him to perform on behalf of syndicate. The prosecu tion has relied upon Section 164 statement of witness Sidharth Trivedi who had stated that one day he had seen Sunil Bhatia, Babu Rao and Ajit Chandela sitting together in a hotel. Subsequently, on his visit to Delhi, Ajit Chandela had taken him alongwith Sunil Bhatia and Babu State Vs. Ashwani Aggarwal & Ors. 125 of 175 Rao to the market for purchasing goggles. It is claimed that this evi dence establishes the continuous presence and association of the ac cused with Sunil Bhatia.
219 The prosecution has also relied on the confessional statement under Section 18 of accused Sunil Bhatia who has also de posed that during the World Cup 2011, he had introduced Sunil Bha tia with Babu Rao and two other persons in Taj Palace hotel. In an other incident, Babu Rao was found sitting alongwith Sunil Bhatia in Maurya Sheraton in Delhi. It is thus submitted that Babu Rao was shown to be in close association with Sunil and is therefore, a part of the crime syndicate.
220 Ld. Counsel on behalf of accused Babu Rao has argued that except Babu Rao being seen in the company of accused Sunil, there is no other allegation against him.
221 The entire case of the prosecution is that accused Babu Rao had been found in the company of accused Sunil Bhatia, the al leged hatch man of the crime syndicate and had been found sitting with him in different hotels. There is not an iota of evidence to show that accused Babu Rao had ever participated or was instrumental in any of the activities of Sunil Bhatia or of the alleged crime syndicate. Mere association or friendship with Sunil Bhatia, does not disclose any offence punishable under any law. His mere presence with Sunil Bhatia also does not show that he was a part of the crime syndicate. Therefore, the offence under MCOCA is not made out against him.
Syed Durrey Ahmed @Sohaib (Accused No.21), Mohd. Shakeel Amir (Accused No.37), Mohd. Yahia @ Yusuf (Accused No.19) State Vs. Ashwani Aggarwal & Ors. 126 of 175 and Babu Sunil Chander Saxena (Accused No.20) 222 The case of the prosecution against these accused is that accused Mohd. Shakeel Amir met Chandresh Patel who approached him to fix the pitch curator and to post all the pitch information which could be used by the bookies. It is further the case of the prosecution that accused Mohd. Amir during his conversation with Chandresh Patel realized that he could earn handsome money by associating himself with cricket bookies. Mohd. Shakeel Amir along with Mohd. Yahia, Syed Durrey Ahmed and Babu Sunil Chander Saxena got arranged a meeting of lookalikes of players of Sunrise Hyderabad at Le Meridian, Pune and Park Hotel, Chennai with Chandresh Patel and Praveen Thakur and took money from Chandresh Patel.
223 The case of the prosecution is that these accused were found cheating other accused persons namely Chandresh Patel, Jitender Kumar Jain and Praveen Bhai G. Thakkar @ Pintoo.
224 It is submitted on behalf of aforesaid accused persons that in the first instance FIR was registered under Section 409/420/120B IPC. Subsequently, on 03.06.2013 Section 3 and 4 of MCOCA were added. Section 409 IPC was later withdrawn. At the time of arguments of charge, the Ld. Spl. PP had not pressed the charges under Section 420 IPC against these accused. The first line of argument is that the provisions of MCOCA are not attracted against these accused for the simple reason that neither is there any evidence to show that these accused were members of Organized Crime Syndicate of Dawood Ibrahim or Chotta Shakeel nor that they were involved in any unlawful activity. Also, there is no FIR against these State Vs. Ashwani Aggarwal & Ors. 127 of 175 accused persons in regard to evidence on similar activity which is pre requisite for invoking MCOCA Act. Also, mensrea is a necessary ingredient and some direct nexus of the accused with the unlawful activities of the organized crime has to be established which the prosecution has not been able to do viz a viz the aforementioned accused persons.
225 It is further argued that from the case of the prosecution itself it is evident that there is no evidence whatsoever to show that these four accused were a part of the Organized Crime Syndicate or had any nexus with them. There is no allegation of use of violence, coercion or intimidation by any of these four accused in commission of the alleged offence. The case of the prosecution also is that these four accused had cheated Chandresh Patel which in itself does not make MCOCA applicable. Similar were the observations made by the Hon'ble High Court while granting bail.
226 There is allegation made by the prosecution that any of these four accused had any direct nexus with the Organized Crime Syndicate. The only link that has been shown is through Chandresh Patel, Praveen Bhai G Thakkar and Jitender Kumar Jain, but in order to show that they are part of the Organized Crime syndicate, it had to be shown, as already discussed above, they were not only associated in this crime syndicate but that there existed the requisite mens rea to be part of the Organized Crime Syndicate. This is not made out from the evidence which has been collected by the prosecution against them.
State Vs. Ashwani Aggarwal & Ors. 128 of 175 227 The only allegation is that these four persons got together and
persuaded Chandresh Patel and Praveen Thakkar on one occasion and Chandresh Patel, Jitender and Parveen on another occasion to meet set of lookalikes of the players who were to play the IPL cricket matches for the purpose of fixing matches. Even if all the allegations are admitted, the only case that is made out is that Chandresh Patel, Praveen Thakkar and Jitender Kumar Jain were cheated and Chandresh Patel was made to pay Rs.32 lacs to some lookalikes of the players who were to play the cricket matches in IPL 6.
228 It has been rightly argued that even the prosecution has claimed this to be a case of cheating and not an unlawful activity on the part of these four accused. There is neither any nexus nor is there any evidence to show that these four accused had ever been booked for an offence punishable with more than three years in the preceding ten years. No offence under MCOCA is made out.
229 In so far as the offence of cheating punishable under Section 420 IPC is concerned, there has to be some evidence to show that Chandresh Patel had paid Rs.32 lacs and was cheated by being introduced to fake players. But neither is there any complaint from Chandresh Patel and others nor is there any evidence in regard to transfer of RS.32 lacs. None of the ingredients of cheating as defined under Section 415 IPC are made out against these four accused.
230 The prosecution has not be able to establish a primafacie case under any of the offence under MCOCA or IPC and all four accused are entitled to be discharged.
State Vs. Ashwani Aggarwal & Ors. 129 of 175
Deepak Kumar and Sandeep Sharma
231 The allegations that have been made by the prosecution
against accused Deepak Kumar is that he in his confessional statement under Section 18 MCOCA, had admitted that he was introduced to Ajit Chandilia through one Shamsher Singh and that he had fixed Ajit Chandila and had handed over Rs.15 lakhs as advance money to him. He also admitted that this money had been arranged by him and his associate Sandeep Sharma. It is further alleged that witness Sdharth Trivedi in his statement under Section 164 Cr.P.C has also disclosed that Ajit Chandila had introduced him to Deepak and Sandeep and they had discussed session fixing. Thereafter, Ajit Chandila brought Rs.1.5 lakhs approximately and gave Sidhart Trivedi Rs.50,000/ and they all went to DLF Prominard Mall in Delhi. Accused Deepak was already found present there. It is further disclosed by Sidhart Trivedi that in the first week of April 2012 when IPL 5 got started, on his suggestion, Ajit Chandila was selected by his team management. After one or two matches, Ajit told him to meet Deepak and Sandeep Sharma whom he met at Hotel Country Inn in Jaipur. There they asked Ajit to fix sessions in IPL matches. Ajit assured them that he would fix the session and he took Rs.1 lakh from them. In April, 2013, Depak had called him on his mobile phone and asked him for fixing one session for which he refused.
232 The entire case of the prosecution is that this accused Deepak had approached Ajit Chandila for fixing a match in IPL 6 and had handed over Rs.1.5 lakhs to him as advance money and the said money had been arranged by him and his associates Sandeep State Vs. Ashwani Aggarwal & Ors. 130 of 175 Sharma. It is also the case of the prosecution that this accused Deepak had even approached the witness Sidharth Trivedi for fixing the match, but the witness did not agree. The best case against accused Deepak is that he is a fixer who had been working along with his associate Sandeep Sharma (absconding) and had even paid Rs.1.5 lakhs to Ajit Chandila for the said purpose. The accused Deepak may be shown to have made efforts to fix the players, but that in itself does not fit into any offence under any penal statute. The offence against him does not show his connection with any of the bookies or with the organized crime syndicate. If at all, he is shown to be an independent fixer, making attempt to fix the players, but was not successful. Even if the entire evidence against Deepak is admitted, then too no offence whatsoever is made out against him against MCOCA as he is not shown to be member of crime syndicate. No offence of cheating is also made out as none of the players or any witness has asserted that they have been defamed by this accused.
Rakesh Oberoi 233 Accused Rakesh Oberoi was arrested on 16.05.2013 from his office at Rohini. The allegations against him are that he was a fixer who had given Rs.2.5 lakhs in cash to cricketer Ajit Chandila through Deepak Kumar for spot fixing. Accused Ajit Chandila had also revealed in his disclosure statement that out of Rs.20 lakhs that were received in cash by him, Rs.5 lakhs were spent and this amount of Rs.5 lakhs had been received by him from Deepak Kumar and was financed by Rakesh Oberoi.
234 The only incriminating evidence against accused Rakesh State Vs. Ashwani Aggarwal & Ors. 131 of 175
Oberoi is disclosure statement of Ajit Chandila which is per se no evidence. There is no evidence whatsoever to link the accused Rakesh Oberoi with giving of RS.2.5 lakhs out of Rs.5 lakhs which was allegedly given by Deepak Kumar to Ajit. There is no case disclosed against this accused Rakesh Oberoi under MCOCA as he is not shown to have any association with the core crime syndicate.
Praveen Takkar @ Pintu 235 The case of the prosecution is that the investigations have revealed that he is close associate of Jitender Kumar Jain, Mannan U. Bhatt and Chandresh Patel. He had traveled with Chandresh Patel and Manan U. Bhatt to Jaipur, Faridabad etc. for fixing accused Ajit Chandila. His involvement is also corroborated by the confessional statement under Section 18 of accused Jitender Kumar Jain wherein he had disclosed that he had gone to Srilanka with the accused Pintu.
236 Merely accompanying Jitender Kumar Jain to Srilanka cannot be held to be an evidence to show that he was involved in any kind of match fixing or was a part of the organized crime syndicate. In fact, there is no evidence whatsoever against Parveen Takkar to show that he had any role whatsoever in this alleged organized crime of betting and match fixing.
Amit Kishore, Aman and Harvinder 237 It is the case of the prosecution that accused Amit Kishore Chand Jasnani was a retailer of SIM no. 8928335718 which was found to be used by accused Sunil Bhatia. During the investigations, State Vs. Ashwani Aggarwal & Ors. 132 of 175 the subscriber Deepak Subhash Gupta in whose name the said number had been issued was examined and he stated that he had never applied for the said mobile number. He admitted that the photograph, copies of PAN card, driver license attached with the customer application form related to him and were correct. He also stated that someone had forged his signatures on customer application form. The accused Kishore chand in his statement had stated that Sunil Bhatia resident of Nagpur had submitted the application form and on his questioning that name and the photograph was of different person. He was told by Sunil Bhatia that Deepak was his business associate. He ingreed gave the SIM number worth Rs.20/ for an illegal consideration of Rs.100/ to Sunil Bhatia. It was argued on behalf of accused that he was an innocent customer and he had not cheated or committed any fraud. SIM card had been issued in the correct name and therefore, it cannot be said that he has committed any fraud or cheating.
238 The SIM card has been issued in the name of the right person and admittedly, the application form was duly supported by the genuine document. The accused has given the SIM card in the name of the applicant. If merely, because the person who came with the State Vs. Ashwani Aggarwal & Ors. 133 of 175 application form used the said mobile phone, given in the name of Deepak, it cannot be concluded that Kishore had either dishonestly or fraudulently issued the SIM card or had caused any wrongful loss to Deepak, the original subscriber. It is only the disclosure statement of Jasnani that he had taken Rs.100/ instead of Rs.20/ for issuing the SIM card but that is not admissible. The essential ingredients of there being dishonest or fraudulently intentions of Deepak in whose name the SIM card was issued. There is also no evidence to show that he was accomplice of Sunil or in furtherance of any conspiracy or common intention he had issued the SIM card. No prima facie case is made out against the accused Kishore Chand Jasnani.
239 Similar are the allegations against Harvinder Singh of having issued SIM card of fake identity. However, their case is also similar to that of Aman Sachdeva and there is no cogent evidence to show that there was any intentional giving of SIM card to the wrong person. No offence is made out against accused Harvinder and Aman Sachdeva.
Offence under Public Gambling Act 240 The crime in regard to which MCOCA was sought to be invoked is of betting and match fixing. Though, as discussed above the offence of MCOCA is not made out, it still needs to be examined if the accused persons who are alleged to be bookies and their State Vs. Ashwani Aggarwal & Ors. 134 of 175 associates and conduits be considered to have committed any offence under Public Gambling Act.
241 Gambling is a generic word to describe the activity of placing wager or particular outcomes or events taking place, while betting is the term used to refer to agreement between two parties where one party makes a prediction and loses or makes money, if his prediction turns out to be true. The other party forfeits the amount waged or has to return many times more, as per the agreement.
242 The New Encyclopedia Britannica defines "gambling" as the betting or staking of something of value with consciousness of risk and hope of gain on the outcome of a game, a contest, or an uncertain event the result of which may be determined by chance. The terms "wager" and "betting" essentially mean money or other consideration being risked on an uncertain event or a promise to pay money or other consideration on the occurrence of an uncertain event. The above definition associates gambling with betting on the outcome of the game in which a person may win by chance and not by using skills.
243 From ancient times, seers and law givers of India have looked upon gambling as a sinful and pernicious vice and deprecated its practice.
244 In the case of State of Bombay vs. RMD Chamarbaugwala AIR 1957 SC 699, it was observed as under:
"From ancient times seers and law givers of India State Vs. Ashwani Aggarwal & Ors. 135 of 175 looked upon gambling as a sinful and pernicious vice and deprecated its practice. Hymn XXXIV of the Rigveda proclaims the demerit of gambling.
Verses 7, 10 and 13 say :
Dice verily are armed with goads and driving hooks, deceiving and tormenting, causing grievous woe. They give frail gifts and then destroy the man who wins, thickly anointed with the player's fairest good.
10 The gambler's wife is left forlorn and wretched:
the mother mourns the son who wanders homeless.
In constant fear, in debt, and seeking riches, he gos by night upto the home of others.
11 Play not with dice: no, cultivate thy cornland.
Enjoy the gain, and deem that wealth sufficient.
There are thy cattle, there thy wife, O gambler. So this good Savitar himself hath told me.
The Mahabharata deprecates gambling by depicting the woeful conditions of the Pandavas who had gambled away their kingdom. Manu forbade gambling altogether. Verse 221 advises the king to exclude from his realm gambling and betting, for those two vices cause State Vs. Ashwani Aggarwal & Ors. 136 of 175 the destruction of the kingdom of princes. Verse 224 enjoins upon the king the duty to corporally punish all those persons who either gamble or bet or provide an opportunity for it. Verse 225 calls upon the king to instantly banish all gamblers from his town. In verse 226 the gamblers are described as secret thieves who constantly harass the good subjects by their forbidden practices.
Verse 227 calls gambling a vice causing great enmity and advises wise men not to practise it even for amusement. The concluding verse 228 provides that on every man who addicts himself to that vice either secretly or openly the king may inflict punishment according to his discretion.
While Manu condemned gambling outright, Yajnavalkya sought to bring it under State control but he too, in verse 202(2) provided that persons gambling with false dice or other instruments should be branded and punished by the king. Kautilya also advocated State control of gambling and, as a practical person that he was, was notaverse to the State earning some revenue therefrom. Vrihaspati dealing with gambling in Chapter XXVI, verse 199, recognises that gambling had been totally prohibited by Manu because it destroyed truth, honesty and wealth, while other law givers State Vs. Ashwani Aggarwal & Ors. 137 of 175 permitted it when conducted under the control of the State so as to allow the king a share of every stake. Such was the notion of Hindu law givers regarding the vice of gambling.
Hamilton in his Hedaya, vol.IV, book XLIV, includes gambling as a kiraheeat or abomination. He says: "It is an abomination to play at chess, dice or any other game; for if anything is staked it is gambling, which is expressly prohibited in Koran; or if, on the other hand, nothing be hazarded it is useless and vain.""
245 Gambling and Wagers have always enthralled people ever since the beginning of civilization. "Money won is twice as sweet as money earned" from the movie. "The colour of Money" perhaps most succinctly reflects this phenomenon. Most popular means of gambling was dice, as noticed in Mahabharata. The passage of time has seen it change to betting on animal fights to sophesticated games like poker, Hash, Bingo, lottery Stock market, betting on horse racing and now cricket.
246 In the modern times, inundated by materialism and motivated by monetary gains, the concept of gambling in sporting events has acquired unprecedented momentum guaranteeing quick money. Plato in The Republic remarked " Honesty is for the most part, less profitable than dishonesty". This statement of ancient wisdom reflects the present day scenario, most aptly.
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247 According to a survey conducted by FICCI 85% people agreed
that betting on sports existed in India. The enormous cash flow
involved is evident from the report by KPMC which has estimated India' overall gambling market to be 60 million dollars, which amounts to around 3.5 % of India's gross Domestic Product.
248 In more recent times match fixing and betting in cricket and in IPL matches has become the newspaper headlines. Delhi Police has estimated that in one IPL match the total bets would be around RS.150 crore. Staggering figure of Rs.2469,99,08,750/ has been estimated as illegal money, generated through betting on matches played between 04.12.2014 till 19.03.2015 by the Enforcement Department in the charge sheet submitted under Money Laundering Act, in Gujarat.
249 Despite the staggering amount of revenue that gambling and betting have generated, Laws in India have been unfavourable in this area.
250 The Public Gambling Act, 1867 a Central Legislation was enacted during the pre independence era, prohibiting any game of chance and probabilities except lotteries.
251 Gambling per se is an offence since it does not involve skill and has been explicitly prohibited under the Public Gambling Act of 1867. Therefore, in public places like a club, games such as flash or demand card (mang patta) are disallowed.
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252 The Public Gambling Act under Section (3) lays down
"Penalty for owning or keeping, or having charge of a gaming house". According to this section, the owner or occupier, or any other person having the use or charge, care or management of any house, opens, keeps or uses the same as a 'common gaminghouse' and knowingly or willfully permits the same to be occupied, used or kept by any other person as a 'common gaminghouse' shall be liable to a fine not exceeding twohundred rupees, or to imprisonment for any term not exceeding three months, as defined in the Indian Penal Code (45) of 1860.
253 This section further lays down that whoever, advances or furnishes money for the purpose of gambling with persons frequenting such 'gaminghouse' or in any manner assists in conducting, the business of such 'common gaminghouse', in keeping it opened, occupied, used or kept for the purpose of being used as a common gaminghouse' shall be liable to a fine not exceeding twohundred rupees, or to imprisonment for any term not exceeding three months.
254 According to the Act, people can be held accountable if they are found playing in a 'gaminghouse'. A 'gaming house' has been defined as "any house, walled enclosure, room or place in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, enclosure, room or place, whether by way of charge for the use of the instruments of gaming, or of the house, enclosure, room or place, or otherwise howsoever."
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255 Both the person owning the place and the one indulging in
gambling in such a place, can be arrested.
256 Thus the Public Gambling Act, makes gambling illegal i.e.
when it's made a business to earn a profit or a commission. However, Section 12 of the Act has specifically kept certain activities out of its purview. According to this section, the provisions of the Act shall not apply to any game of 'mere skill wherever played'.
257 The term 'Gambling' as such has not defined in the Public Gambling Act, 1867. However, according to Entry 34 of List II, under the Seventh Schedule to the Indian Constitution, "'gambling' includes any activity or undertaking whose determination is controlled or influenced by chance or accident and an activity or undertaking which is entered into or undertaken with consciousness of the risk of winning or losing, e.g., 'prize competitions, a wagering contract, ....Where there is no actual transfer of goods but only to pay or receive the difference according to the market price which varies from the contract price."
258 S.R Das, Chief Justice in State of Bombay vs. RMD Chmarbangwala AIR 1957 SC 699 observed that those activities which encourage a spirit of reckless propensity for making easy gain by lot or chance, which leads to loss of hard earned money of the undiscerning and improving common man and thereby, lower his standard of living and desire him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home, could possibly never be intended by Constitution to be raised to the State Vs. Ashwani Aggarwal & Ors. 141 of 175 status of trade and commerce or protected as a fundamental right.
259 It was further explained that in order to be branded as gambling, the competition must be one in which success is dependent entirely on chance. In order to avoid the stigma of gambling, the competition must involve a substantial degree upon the exercise of skill.
260 The Apex Court in the case of Dr. K. R. Lakshmanan Vs. State of Tamilnadu AIR 1996 SC 1153 after referring to Public Gambling Act, observed that while gambling , which rests purely on chance, is held penal, but this Act creates an exception for game of skill. A game of skill was defined as one in which success depends principally upon the superior knowledge, training, attention experience and expertise of the player. It is a game in which element of skill predominates over the element of chance.
261 In State of A.P vs. K. Satya Narayana AIR 1968 SC 825, game of "Rummy" was held to require considerable skill in holding and discarding cards. It was held to be mainly and predominantly a game of skill and held to be not a gambling activity inviting penal consequences.
262 Likewise, the Apex Court in the case of K.R Lakshmanan vs. State of Tamil Nadu AIR 1996 SC 1153 considered the betting of horse racing and noted that racing is really a test of acquiring speed and stamina. A considerable degree of training is given to horses by the experts. It also required breeding. Lot of State Vs. Ashwani Aggarwal & Ors. 142 of 175 money is also expended on training and equipping of jockeys. Thus, the inherent capacity of the animal, the capacity of jockey, the form and fitness of the horse are all objective facts are capable of assessment by race goers. Thus, the prediction is the result of much knowledge, study and observation. Horse racing was thus, held to be a game of skill unlike pure games of chance like Roulette or Lottery.
263 In 2005, in the case of Manakady Elainger Nala Sports, Narpane Mandran vs. State of Tamil Nadu 2005 (1) CTC 245, Madras High Court has declared that playing games like chess and carrom even on payment of fees to the clubs, would not amount to gambling under Public Gambling Act as the games are predominanty games of skill.
264 New Encyclopedia Britannica, 15th Edition, Vol. 5 Page 105 has also stated that betting on athletic contests involved the assessment of a contestants physical capacity and the use of other evaluative skills.
265 Though there is no judicial verdict in regard to spot of cricket, but applying the principles laid down in the judgments discussed about, it can be easily noted that cricket is purely a game of skill which required extensive training, practice and expertise and skills in the players. It is not a game of chance but of knowledge, study and practice, which primarily depends on the special ability acquired by training.
State Vs. Ashwani Aggarwal & Ors. 143 of 175 266 Cricket as a game of skill requires handeyecoordination for
throwing, catching and hitting. It requires speed, both during fielding chases and between the stumps. It requires stamina and brute strength to wallop boundaries. It requires microscopic levels of precision and mental alertness for batsmen to find gaps or for bowlers to produce variety of styles of deliveries' (medium pace, fast, inswing, outswing, offspin, legspin, googly). The sport requires strategic masterminds that can select the most efficient fielding positions for piling pressure on the batsmen. Based on above description, cricket cannot be described anything, but as a game of skill.
267 The game of cricket, therefore, cannot be held as a game of chance, but is a game of skill which is exempted under Section 12 of Public Gambling Act, from the definition of Gambling.
268 Therefore, even if it is accepted that there was rampant betting going on in the IPL6, but it is an activity excluded u/s 12 of Public Gambling Act, and is not an offence for which any of the accused can be held liable.
269 Having concluded that the acts of gambling in the nature of betting and match fixing are not covered by any statutory provisions of any penal code, it would still be worth the while to note that the efforts of Special Cell have brought to the fore the contamination which has crept in the sports especially in commercial sports like IPL. It has exposed the conduct not only of the players, but also of the so called bookies and conduits who have been connected in this big game of money through match fixing and betting. But, in view of the State Vs. Ashwani Aggarwal & Ors. 144 of 175 huge vaccum of law in this regard in the realm of law, this Court is helpless to proceed further under any of the penal statutes.
270 It may be worth the while to mention here that similar situation in regard to fixing of players had arisen in the year 2000 Viz a Viz the famous players Azruddin and others. A preliminary inquiry was conducted by CBI but it was reported that no offence under the penal statute of India was made out against these players who had indulged in session/match fixing. Despite being aware of the situation no laws have been enacted till date to cover these situations.
271 One may refer to the observations made by House of Lords in Spicer Vs. Holt (1976) 3 All ER 71 that when in a statute dealing with a criminal offence infringing upon the liberty of a citizen, a loop hole is found, it was not for judges to cure it, for its dangerous to derrogate from the principle that a citizen has a right to claim that however much of his conduct may seen to deserve punishment, he would not be convicted unless that conduct falls fairly within the definition of crime of where he is charged. Therefore, it is for the legisture to intervene and amend the law.
272 The Hon'ble Mr. Justice, Mudgal in his IPL probe Committee report has observed that the investigating agencies have been frustrated in their attempts, more often than not, in view of absence of appropriate substantial laws on the matters of betting and fixing in sports, which is necessary for the law enforcement agency to find a level playing field to eradicate corruption in cricket.
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273 In this context, it would be pertinent to mention that their exists
regulations of Board of Control For Cricket in India. AntiCorruption Code is provided which provides that fixing of match in any way or otherwise influencing in any way or otherwise influencing properly or being a part to fix or otherwise influence improperly the result, progress, conduct or any other aspect of any match or event or seeking accepting, offering any bribe or reward which would influence the result, progress, conduct or any aspect of match or event; and soliciting or facilitating any participant to commit an offence as described above, would be guilty of corruption. Like wise, "betting" has been stated under the AntiCorruption Code to mean placing, accepting, laying or otherwise entering into any bet with any other party in relation to progress, relation, conduct or any other aspect or any match or event. Soliciting, persuading, encouraging, facilitating or authorising any other party to enter into a bet for a direct or indirect benefit of participant and ensuring the occurance of a particular in a match or event would amount to betting.
274 The AntiCorruption Code also covers disclosing inside information to any person before the match or event where the participant might receive or know that disclosure of such information in such circumstances, can be used in relation to betting.
275 The offence of match fixing and betting and the incidental conduct of the players/bookies in furtherance of these activities is thus, covered under the AntiCorruption Code of Board of Control For Cricket in India. Necessary penal action have already been sactioned against the errant players and other people.
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276 Therefore, this Court finds itself limiting in framing charges
against of the players on the allegations of the match fixing and betting for want of appropriate law. No prima facie case is disclosed.
Cheating under Indian Penal Code, 1807 277 Another aspect which needs consideration is that accused Ashwani Aggarwal, Ramesh Vyas, Feroz, Jitender Kumar Jain, Chandresh @ Jupiter along with other co accused/other associates Sunil Bhatt, Sanjay Aggarwal, Amit Kumar Singh and others have been levelled with the allegations of match fixing. The question is whether this act of match fixing would per se amount to the offence of cheating.
"Match fixing" was defined by CBI in its preliminary report (in the year 2000) as:
(i) Instances where an individual player or group of players received money individually/collectively to underperform;
(ii) Instances where a player placed bets in matches in which he played that would naturally undermine his performance;
(iii) Instances where players passed on information to a betting syndicate about team composition, probable result, pitch condition, weather, etc.,
(iv) Instances where groundsmen were given money to prepare a State Vs. Ashwani Aggarwal & Ors. 147 of 175 pitch in a way which suited the betting syndicate; and
(v) instances of current and explayers being used by bookies to gain access to Indian and foreign players to influence their performance for a monetary consideration."
278 The question is whether under playing and nexus with bookes are acts of cheating for pecuniary benefits. According to section 415 IPC, whoever, by deceiving any person, fraudulently, or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat. Explanation to this section says that a "dishonest concealment of facts" is a deception within the meaning of this Section.
279 The term 'Dishonestly' is defined under section 24 of IPC that "anything done with the intention of causing wrongful gain to one person or wrongful loss to another person". Therefore, there has to be some wrongful loss to cause wrongful gain.
State Vs. Ashwani Aggarwal & Ors. 148 of 175 280 In the case of match fixing, when a player conceals the fact of
receiving money from punters or bookmakers, it cannot be termed as 'cheating' as it has to be proved that there was an intention to cause wrongful loss to spectators.
281 In the present case, what is wrongful loss that is caused to spectators is not forthcoming except that they felt disgusted to know that some players had not performed according to their capacity.
There is no wrongful loss per se caused to any party.
282 Furthermore, cheating is not an offence, which cannot be committed in rem, rather it must be against a specific person. The deception on the public in general is of letting them think that the match is not fixed. Where the offence is one where the public at large is effected, the words used in the statute is public or people in general and reference is not of a specific victim. Also, this section requires transfer of property between the accused and the victim. In the case of match fixing, there is no such transfer and therefore, it cannot be said that the offence of 420 IPC is made out.
Final Conculsion
283 From the forgoing detailed discussion, it can be concluded that
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even if entire evidence of prosecution is accepted, then too it is not established that there exists a core crime syndicate of Dawood Chhota Shakeel who have benen indulding in the organized offence of betting and match fixing and also dealing with money so generated through hawala. The prosecution has not been able to establish that there is any continuing unlawful activity of crime syndicate as it has not been able to meet the requirement of there being more than one FIR in preceding 10 years against the syndicate. No nexus or link between various accused with Dr. Javed Chutani as part of organized group has been established. Also, the offence in relation to which MCOCA is sought to be invoked, pertains to betting and match fixing, which as discussed above does not fit in any Penal statute. All the necessary ingredients to establish a prima facie case under the provisions of MCOCA is not made out. The best case could have been under Public Gambling Act, but that also is not prima facie established from the evidence placed on record by the prosecution. The offence of cheating is also not made out prima facie, even if the entire evidence of prosecution is admitted without formal proof.
284 In the given situation, bound as this court is with the law of the land, it is contrained to conclude that no prima facie case under MCOCA or any other Penal statute is disclosed against any of the accused persons, who are all entitled to be discharged.
285 They are accordingly discharged. Bail bond, surety bond cancelled.
File be consigned to record room.
ANNOUNCED In the open Court (NEENA BANSAL KRISHNA)
today on 25th Day of July, 2015 ASJ-01/New Delhi District
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Patiala House Courts
New Delhi
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