The State Of Maharashtra vs Usman Gani Buddha Kumbhat And Ors. on 18 November, 2025

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Bombay High Court

The State Of Maharashtra vs Usman Gani Buddha Kumbhat And Ors. on 18 November, 2025

1) The State has preferred this Appeal being aggrieved by the 1/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 ::: P. H. Jayani 901-APEAL-113-2005.doc Judgment and Order dated 21/07/2003, in M.C.O.C. Special Case No.19/2001, passed by the learned Special Judge, under M.C.O.C. Act, Gr. Bombay whereby the Respondents/Accused Nos. 1 to 4 ("A-1 to A-4") were acquitted of the charge for the offences punishable under Sections 3 (1) (ii), 3 (2) and 3 (4) of the Maharashtra Control of Organised Crime Act, 1999 ("M.C.O.C. Act"), Section 489-B, 489-C and 120-B of the Indian Penal Code, 1860 ("I.P.C.").

2) Record indicates that leave to Appeal was granted on 31/01/2005 and action under Section 390 of Cr.P.C. was allowed. Since then copies of the appeal memo were not provided to the registry. Therefore, notice could not be issued. However, considering the matter is 20 years old, taken up for hearing and passing Order.

3) Heard Mr Khan, the learned APP. Perused the record.

4) Facts giving rise to this Appeal are that PW-1 Suresh Ramchandra Naik, was an Intelligence Officer in the Directorate of Revenue Intelligence (for short "DRI"). On 31/08/2001, PW-1 had lodged a First Information Report (Exh.10) at Dongri Police Station, Mumbai. Said Report narrates that on 19/07/2001, at about 11:00 a.m., when PW-1 was present in his office at Mumbai Zonal Unit, DRI, his superior officer had received an intelligence from the source that 2/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 ::: P. H. Jayani 901-APEAL-113-2005.doc two persons were likely to visit Dongri Hostel, situated on the 1 st floor of Zohara Manzil, 203, S.V.P. Road, Dongri, Mumbai, and they were to receive one parcel containing counterfeit Indian currency notes smuggled through one passenger who had arrived by a flight from Dubai in the morning of 19/07/2001. Therefore, a raiding team was formed. At about 12:30 hours, a trap was laid near the said Zohara Manzil. At about 14:10 hours the team spotted two suspects entering Zohara Manzil. Said two persons were followed and they were found entering the Room No.5 of Dongri Hostel, situated on the 1 st floor of Zohara Manzil. Therefore, the DRI officers made an inquiry with the owner of Dongri Hostel - Mr. Mohammad Aslam Koor (PW-5). The inquiry revealed that the occupant in Room No.5 was Usman Gani Kumbhar (A-1), who had arrived on the same morning and checked in the said hostel. The said two persons who had entered in that room were Gulam Nadar Sayyad (A-2) and Noor Mohd. Amir Mohd. (A-3) and they were to receive a television set ("TV set") from A-1, on behalf of Mr. Gulam Nabi @ Nisar Allauddin Ahmed Shaikh (A-4).

Therefore, two panchas were summoned, and in their presence, personal search of the accused was conducted. Passport (Article-3), Dubai - Mumbai travelling ticket (Article-4), boarding 3/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 ::: P. H. Jayani 901-APEAL-113-2005.doc pass (Article-5), excess luggage receipt (Article-6), Mumbai Airport custom duty receipt in the name of A-1 (Article-7) and handwritten paper chit (Article-8) were found during personal search of A-1 and his luggage. A cardboard carton containing SONI TV set (Article No.1) was found there. The raiding party opened the back panel of the TV set. Some packets were concealed in the TV set. The packets were examined. Counterfeit Indian currency notes of the denomination of Rs.500/- (2170 notes) and of Rs.100/- (4990 notes) (total face value Rs.15,84,000/-) were found in the packets. Said notes were seized. Accordingly, the search and seizure Panchanama was recorded. Hence, A-1 to A-3 were arrested and brought to the DRI office.

5) Thereafter, the DRI officers recorded the statements of A-1 to A-3 under Section 108 of the Customs Act. Initially, an offence was registered under Section 135 of the Customs Act, 1962 bearing No.DRS/VZO/B/INV/14 of 2001. On 25/07/2001, officers from the RBI examined the seized currency notes, and they opined that the said notes were counterfeit. Accordingly, panchnamas were recorded.

6) Investigation transpired that A-1 to A-4 had entered into a criminal conspiracy alongwith wanted accused Dawood Ibrahim Kaskar, Annes Ibrahim Kaskar, Aftab Yunus Batki @ Sultan and one 4/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 ::: P. H. Jayani 901-APEAL-113-2005.doc Hussainbhai operating the organised syndicate from outside the India. The A-1 to A-4 acted as the members of the organised crime syndicate led by Dawood Ibrahim Kaskar to indulge into continuing the criminal activities by or on behalf of the organised crime syndicate, in the city of Mumbai and elsewhere, i.e., to sell and distribute said counterfeit currency notes with an intent to earn an unlawful pecuniary gain. Hence, on completion of the investigation, charge-sheet was filed against the accused persons.

7) Accordingly, the charge was framed against the accused to which they did not plead guilty and claimed to be tried. Their defence was of denial and false implication.

8) The prosecution examined 18 witnesses. Their testimonies were supported with various documents proved by the witnesses which includes the raiding team members, the panchas, RBI Officer, police officers who participated in the investigation etc.

9) Closure of the prosecution evidence followed by recording statements of the accused under Section 313 of Cr.P.C. (Exh.72 to 75). They denied the incriminating evidence and contended that they were falsely implicated in this case. No accused stepped into the witness box or examined any witness in the defence.

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P. H. Jayani 901-APEAL-113-2005.doc The A-1 did not dispute that he had come from Dubai on 19/07/2001 and that he had brought one TV set alongwith his luggage. But he does not know as to whether the notes were taken out from inside the TV set because the TV was not opened in his presence. He has also denied and disputed that the TV set before the Court was brought by him. He does not know about the notes seized and that, the notes were not seen by him. According to him, when his bags were checked at the DRI office, only personal belongings and chocolates were found in it. He also denied that he had visited the Dongri Hostel and also the recovery of the alleged chit containing a particular phone number. He had also pleaded ignorance about the other accused before the Court. The A-2 and A-3 also denied the incriminating evidence and claimed that the case was false. The A-4 denied the prosecution case for want of the knowledge, and claimed that, he was falsely implicated on the basis of false evidence.

10) On evaluating the prosecution evidence in the light of the arguments advanced by the parties, the learned Judge of the trial Court held that there is no sufficient and reliable evidence to prove the offence under the M.C.O.C. Act. The statements of the accused recorded under Section 108 of the Custom Act were not made 6/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 ::: P. H. Jayani 901-APEAL-113-2005.doc voluntarily. There was no sufficient evidence against A-1 that he was in conscious possession of the fake currency notes. The evidence is short to prove the involvement of A-2 to A-4 in the offence. This persuaded the learned Judge to acquit the accused of the said charge.

11) Mr. Khan, the learned APP submitted that there is consistent evidence by the raiding team members that on receiving the secret information, a raiding team was formed; that, the trap was led; that, A-2 and A-3 were spotted with suspicious behaviour; that, they were followed upto the room in which the A-1 was occupied at the relevant time. He submitted that, when the raid was carried out, fake currency notes were found concealed inside the TV set which was admittedly brought by A-1. The documents pertaining to payment of the custom duty also established the said fact. The said currency notes were seized and a detailed Seizure Panchanama was recorded. The evidence of the officer who recorded the Panchanama and the panch witness is very consistent and thus, it proves the seizure. As planned, the A-2 and A-3 had gone to the said room with intent to collect the said currency notes. The accused persons failed to explain their presence in the said room and possession of the fake currency note with them. Thus, on the strength of the evidence adduced by the 7/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 ::: P. H. Jayani 901-APEAL-113-2005.doc prosecution the offences stated in the charge were proved beyond a reasonable doubt. However, the trial Court ignored that evidence and acquitted the accused which is not lawful. Therefore, leave to appeal was granted to challenge that Judgment and Order of the acquittal.

12) PW-12 Abdul Aziz Abdul Gani testified that he knew A-2 to A-4. That, on 18/07/2001 A-2 to A-4 had planned that delivery of a TV set was to be taken at the instance of A-4, from a friend of A-4, who was to come by Gulf airways on the next day morning. PW-6 Dinesh Shetty tendered his evidence to prove that before the raid was conducted, A-1 had made a phone call to Dubai on 19/07/2001 from the STD booth at Dongri, where PW-6 was working.

13) The evidence of PW-1 Mr. S.R. Naik, PW-2 Mr. Swami and PW-11 P.P. Kuriakose indicates that on receiving the secret information by PW-11, a team was formed comprised of PW-1, PW2, PW-11 and other officers. Thereafter, the team went to Zohara Manzil, at about 12.30 hours and laid a trap there. At about 14.15 hours they spotted the A-1 and A-2, who appeared suspicious when they entered in Zohara Manzil. Therefore, both these accused were followed till they went to Room No.5 of the said hostel. Thereafter, the raiding team contacted with the hostel owner (PW-5) and inquired about A-1. PW-5 8/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 ::: P. H. Jayani 901-APEAL-113-2005.doc confirmed that A-1 had occupied the Room No.5. The DRI officers then entered in that room and checked the baggage of A-1 and the TV set brought by him. It was followed by seizure of the articles including the fake currency notes under the Panchnama (Exh.P18). PW-13 was Manager of the hostel at the relevant time. PW-13 had taken the relevant entry in the Register (Exh.P25). The said register was seized.

The evidence of PW-3 Sanjay Savalgi is that at the relevant time DRI officers had called him to act as the panch. In his presence the belongings of A-1 and the said TV set was checked. The aforesaid Article Nos.3 to 8 found in possession of A-1 and the currency notes found in the TV set were seized under the panchanama (Exh.18).

14) Evidence of PW-5 Aslam Koor is that around 4-5 persons from the DRI office had visited him and inquired with him as to whether A-1 was present there. On confirming the A-1's presence in Room No.5, the DRI officers went there and checked the baggage of A-1. At that time, A-2 and A-3 were also present in that room. PW-13 Mohiddin Adhikari was the Manager at Dongri Hostel. He had made the entry about A-1 occupying the Room No.5 on 19/07/2001. He identified that entry in his handwriting in the Register (Exh.25 colly.), seized by the raiding team. PW-5 and PW-13 identified the A-1 to A-3. 9/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 :::

 P. H. Jayani                                               901-APEAL-113-2005.doc

15)             PW-7 Arif Shaikh deposed that at the relevant time he

used to sell SIM cards of BPL and Orrange co. On 24/06/2001, A-3 had bought a SIM card from him for his friend. It was a prepaid card of Orange company and sold for Rs.730/-. PW-8 Mubarakali Siddique has testified that A-2 and A-3 were known to him and that, A-3 had made a phone call from his STD/PCO booth on 26/06/2001. PW-9 Masapogali Jamanna was examined to prove that one Shaikh Abdul Rehman had purchased one SIM card with mob. No.982****081 vide Subscriber Registration Form Exh.39.

16) PW-14 Vijay Shinde deposed that at the time of the incident he was working in Max Touch co. He had provided to the DRI the copy of the subscriber application form and incoming-outgoing details of mob. No.982****081 Exh.52 colly. Said information was related to the SIM card in the name of Shaikh Abdul Rehman.

17) According to PW-4 Ajay Gurnani, certain sized currency notes were examined by the RBI officers in his presence under the Panchanama (Exh.21 colly.) was recorded. PW-10 Sandip Vaidya is a witness to the examination of the other seized currency notes by the RBI officers under Panchanama (Exh.P22). In the opinion of the officers of RBI, the seized currency notes were counterfeit. 10/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 :::

 P. H. Jayani                                                901-APEAL-113-2005.doc

18)             PW-15 PSI - Sangle, Dongri Police Station was examined

to prove the recording of the FIR filed on 31/08/2001. PW-16 Mr. Deshpande, PW-17 Mr. Mukhedkar and PW-18 ACP Mr. Kamble were the police officers who were involved in the investigation of the case.

19) Now, first, let us deal with the evidence of the offence under the M.C.O.C. Act. The prosecution has relied upon the sanction order (Exh.P66) and copies of the previous charge-sheets filed in the Court against the organised crime syndicate of Dawood Ibrahim Kaskar and Aftab Batki etc. (Exh.P68 colly. - true copies) and it pertains to F.I.R.No.463/2000 registered with Oshiwara Police station and F.I.R.No.184/99 registered with Sakinaka Police station. The said charge-sheets were registered as Special Cases under the M.C.O.C. Act against the organised syndicate of Dawood Ibrahim Kaskar aided by Anees Kaskar, Aftab Batki and others operating from India to send, distribute or sell counterfeit currency notes in India as a continuing criminal act by the said organized crime syndicate.

20) In order to link the A-1 to A-4 with the continuing unlawful activities by or on behalf of the organised crime syndicate, the prosecution has relied upon the letter (Exh.P69 colly) which states about the charge-sheets in C.R.No.53/2000 and C.R.No.173/2000 11/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 ::: P. H. Jayani 901-APEAL-113-2005.doc filed against A-4 Gulam Nabi Allauddin Shaikh @ Nisar. The said letter indicates that copies of charge-sheets enclosed with that letter were received by the Investigating officer from the Office of Dy. Commissioner of Police, New Delhi.

The learned Judge of the trial Court noted that though the documents indicate to be the charge-sheets, there is no evidence as to whether the cases in respect of those charges were pending against the A-4 because the copies were not certified by the Court nor the case no. was indicated as pending before the Court of Sessions of New Delhi. Be that as it may, the A-4 was not shown as accused in any of the relied upon charge-sheets (Exh.68 colly.) As against A-1 to A-3, there was no previous charge-sheet to be relied by the prosecution to link them with the organised crime syndicate or its unlawful activities.

21) The prosecution claimed that one chit stating a telephone number of Dubai was found in the possession of A-1 and, A-1 had contacted on that number from a telephone booth situated in the vicinity of Dongri hostel where he had arrived on 19/07/2001. Reliance was also placed upon statement of A-1 (Exh.P42 colly) recorded by DRI officers. The said statement was recorded in Gujarati language and its English translation has been produced. Nevertheless, 12/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 ::: P. H. Jayani 901-APEAL-113-2005.doc this statement is not sufficient to connect the A-1 with the organised crime syndicate of Dawood Ibrahim Kaskar aided by Aftab Batki.

22) A-1 had referred to one Hussainbhai who had given a free ticket to A-1 against carrying his luggage as A-1 wanted to see his mother. He had met Hussainbhai on 17/07/2001, who had told him that he will book a ticket for A-1 on 18/07/2001 and that A-1 will have to carry a TV with him. He also came to know that different people from his village at Dubai were carrying Hussainbhai's luggage to Mumbai like mobile phone, battery etc. in exchange for a ticket and then he agreed to Hussainbhai's instructions. It appears that he had carried the extra luggage against the free ticket and at Dubai Airport, Hussainbhai had given him one chit in which his mobile number of Dubai was written and Hussainbhai had told A-1 that after he comes out of Mumbai Airport one person by name Raju will meet him to whom the TV had to be delivered. Hussainbhai had also instructed him to contact him on the mobile number mentioned in the chit if he does not meet Raju. However, on A-1 reaching to Mumbai Airport, nobody turned up, hence, A-1 went to the Dongri Hostel. A-1 then contacted Hussainbhai on the his mobile number at Dubai when Hussainbhai told him that his persons will come within an hour or two 13/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 ::: P. H. Jayani 901-APEAL-113-2005.doc to collect the TV At about 2.00 p.m. to 2.30 p.m. A-2 and A-3 came to his room saying that they were sent by Hussainbhai to collect the TV. Thereafter, the DRI officer came to his room and started inquiry upon which he produced his passport, ticket, etc. before the officers. The officers also checked his baggage and when they unscrewed the back cover of the TV set, packets containing the fake currency notes of Rs.100/- and Rs.500/- were found inside the TV set.

23) The trial Court then examined as to whether the said statement given by A-1 was admissible under Section 108 of the Customs Act. In this regard the trial Court considered the provisions of said Section 108 and observed that this Section provides that any Gazetted officer of customs shall have power to summon any person whose attendance is considered necessary either to give evidence or produce documents or any other thing in the inquiry which such officer is making and the person so summoned have to produce the documents or other things which are in possession or control of the person summoned. It is obligatory upon the person summoned to state the truth upon any subject as said inquiry shall be deemed to be a judicial proceedings within the meaning of Section 193 and Section 228 of IPC. Reading these Sections in harmony indicate that Section 14/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 ::: P. H. Jayani 901-APEAL-113-2005.doc 108 of the Customs Act does not contemplate recording of any confession or statement like a judicial magistrate recording any confession or statement under Section 164 of Cr.P.C. The entire idea under section 108 of the Customs Act is to enable the Gazetted officer questioning the person to gather all the truth concerning the episode. If the statement so extracted is untrue, it has no utility. In other words, the statements recorded under section 108 of the Customs Act are statements made in answer to summons from the gazetted officer of the Customs to give evidence or to produce documents or any other thing in any inquiry. Therefore, such statements are required to be specially scrutinised to find out if they were made under any threat or promise from someone in authority. If after such scrutiny they are rated to be not voluntary or having been obtained under pressure or threat or under such circumstances making it suspicious or doubtful or recorded contrary to said Section 108, then it would be risky to base a conviction on such statement since Section 108 contemplates inquiry to be conducted in which a person is summoned to give evidence or to produce something. In such inquiry, the person whose statement is recorded, he does not stand in the character of an accused.


24)             The trial Court further noted that when the source


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 P. H. Jayani                                               901-APEAL-113-2005.doc

information was that two persons would come to collect fake Indian currency notes from a passenger at a particular place, it was expected from the DRI officers, who were also gazetted officers, to report such information to the local police station which clearly relatable to offences under Section 489-B and 489-C of I.P.C. and alert them about that information. The trial Court further noted that not only the DRI officers took over the role of police so as to lay the trap and to draw panchanama regarding seizure of counterfeit currency notes but also they had waited till 31/08/2001 to file the Report (Exh.P10) although they had seized the counterfeit currency notes. Finally, PW-1 lodged the Report. Under these circumstances, it was necessary for the prosecution to explain the inordinate delay in filing the said Report, which was not satisfactorily explained.

25) Undoubtedly, continuing criminal activity by underworld dons and criminal gangs operated by them have posed serious threat to law and order and to peace loving society. The gangs also indulge into smuggling in contraband fake currency notes to make illegal gains or black money and the Special Act became necessary to control the menace which the ordinary law was found inadequate to control. Under these circumstances, PW-1, PW-2 and PW-11 ought to have 16/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 ::: P. H. Jayani 901-APEAL-113-2005.doc been vigilant and careful to lodge a prompt complaint with the jurisdictional police station.

26) As alleged, A-2 and A-3 had also given statement before the Customs Officers. This was followed by further statements of A-2 and A-3. On a plane reading of all these statements (vide Exh.P43, Exh.P44, Exh.45 and Exh.46) show that the alleged confessional statements by A-2 and A-3 were retracted by them at the earliest possible opportunity when they were produced before the 3rd Court of the learned Addl. Chief Metropolitan Magistrate, Mumbai, on 20/07/2001. This would indicate that formal accusations were leveled against A-1 to A-3. Therefore, it is necessary to find out as to whether the statements were voluntary and true though retracted later.

27) In this regard we have notice that, after recording the panchanama in respect of seizure of the counterfeit currency notes, the accused were taken to the DRI office, meaning, the accused were arrested immediately after the counterfeit currency notes were seized. Under Article 20(3) of the Constitution of India, no person accused of any offence shall be compelled to be a witness against himself. Thus, it appears that the statements obtained under the circumstances when the A-1 to A-3 were taken by DRI officers to their office under 17/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 ::: P. H. Jayani 901-APEAL-113-2005.doc compelling circumstances on the ground that counterfeit currency notes were found inside the TV set and that on following day they were produced before the learned Addl. Metropolitan Magistrate with the accusation of having found in possession of the said currency notes. Therefore, and considering the facts and circumstances of the case, the learned Judge declined to accept the prosecution's claim that the said statements were recorded in an inquiry as contemplated under section 108 of the Customs Act. Furthermore, it was observed that, having regard to the unexplained delay of 43 days in lodging the Report, such statements would lose their probative value apart from criticism that they were obtained under compulsive circumstances making them inadmissible in view of Section 24 of the Indian Evidence Act. For all these reasons there is no satisfactory evidence before the Court to reach a conclusion that provisions of M.C.O.C. Act are attracted in this case.

28) In so far as the evidence of P.W.12 is concerned, there is unexplained delay in recording his statement by the police. The TV set allegedly brought to the Room No.5 by A-1, was not handled by A-2 and A-3. Therefore, the evidence of PW-12 that the word " mal" was used during the conversation before him is not sufficient to hold that 18/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 ::: P. H. Jayani 901-APEAL-113-2005.doc A-2 and A-3 had come to the said room to collect the fake currency notes. That apart, the evidence of PW-12 is not sufficient to hold that whatever physical and telephonic conversation had taken place in his presence, it was in relation to the alleged fake currency notes.

29) No mobile phone was seized in this case from any of the accused so as to connect them with the print outs. There is no evidence to show that any of the accused was instrumental to submit the relevant subscriber registration form to obtain any mobile connection. There is no evidence to indicate that Hussainbhai who was contacted by A-1 was member of the organised crime syndicate of Dawood Ibrahim Kaskar aided by Aftab Batki. Therefore, we conclude that there is no sufficient and satisfactory evidence to indicate that A-1 to A-4 were connected to the organised crime syndicate of Dawood Ibrahim Kaskar aided by Aftab Batki operating from beyond the borders of India to send and distribute the counterfeit currency notes in India.

30) Considering the facts and circumstances of the case, even accepting the prosecution case that A-1 had carried the TV set against the free ticket given by Hussainbhai and then A-1 contacted Hussainbhai on his Dubai number, it would not indicate that A-1 was 19/20 ::: Uploaded on - 06/12/2025 ::: Downloaded on - 12/12/2025 20:51:20 ::: P. H. Jayani 901-APEAL-113-2005.doc conscious about the packets containing counterfeit currency notes concealed inside the TV set. Otherwise he would have shown the conduct of a guilty person by immediately trying to dispose of the TV set after arriving at Dongri hostel. He had simply contacted the Dubai no. to know as to whom the TV was to be handed over as told by Hussainbhai. This conclusion is fortified by the fact that Dubai Airport was a sensitive Airport. As such it is safe to presume that the customs officials concerned must have been be satisfied before the baggage of A-1 was cleared. Secondly, strict scanning/screening procedure must have been followed in respect of baggages carried to other countries. Yet, the customs officials at Dubai could not see the fake currency notes concealed in the TV set.

31) In the backdrop of the above discussion, we are of the considered view that the impugned Judgment and Order of acquittal is based on appreciating the prosecution evidence in its correct perspective and there are no infirmities. We therefore do not see any reason to set aside the same. With the result, the Appeal is dismissed.

                   (SHYAM C. CHANDAK, J.)                         (BHARATI DANGRE, J.)
PREETI
HEERO
JAYANI
Digitally signed
by PREETI
HEERO JAYANI                                                                                          20/20
Date: 2025.12.06
18:07:46 +0530




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