Bombay High Court
Ali @ Alisher Lalmohammed Saudagar vs The State Of Maharashtra on 26 February, 2022
Author: M. S. Karnik
Bench: M. S. Karnik
1. ba 40.20.doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Digitally signed
by URMILA
URMILA PRAMOD
PRAMOD INGALE
Date:
INGALE 2022.02.28
19:49:46 +0530
BAIL APPLICATION NO. 40 OF 2020
Ali @ Alisher Lalmohammed Saudagar .. Applicant
VS.
The State of Maharashtra .. Respondent
------------
Mr. Mithilesh Mishra i/b Mr. Agastya Desai, for Applicant.
Ms. Veera Shinde, APP for State.
------------
CORAM : M. S. KARNIK, J.
DATE : FEBRUARY 26, 2022
P.C. :
1. This is an application for bail under section 439 of the
Code of Civil Procedure, 1973 ('CrPC' for short). The
applicant- the original accused no.3 was arrested on
21/03/2017 for the offences punishable under sections 8(c),
21(b), 22(b), 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 ( 'NDPS Act' for short).
2. It is the case of the prosecution that accused no. 1
was arrested by officers of Anti Narcotic Cell, Crime Branch,
Pune by Khadki Police Station in respect of C.R. No. 3059 of
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2019 on 19/03/2017 on the allegation that accused No.1
was found in possession of 11 gram of Heroine (gard
powder) and cash amount of Rs.1,200/-. Accused no.1 was
produced before the Judicial Magistrate First Class ('JMFC'
for short) at Pune and while in police custody, the accused
no.1 disclosed the name of present applicant. Thereafter
the officials of Khadki Police Station arrested the applicant
on 21/03/2017 from Ahmednagar and during the search it
is alleged that 5.140 grams of Heroine was recovered and
seized under a panchanama. The applicant preferred an
application for bail which came to be allowed by the
Sessions Court on 31/03/2017. Before the applicant could
secure his release on the basis of the bail granted by the
learned JMFC, Khadki, the respondent obtained sanction
under section 23(2) of the Maharashtra Control of
Organised Crime Act, 1999 ('MCOC Act' for short) vide order
dated 29/08/2017. Thereafter the charge-sheet came to be
filed in the Special Court against the original accused nos.
1, 2 and applicant and accused no.4 vide MCOC Special
Case No. 20 of 2017 also under sections 3(i)(ii), 3(2), 3(4)
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of MCOC Act.
3. During the course of investigation, it transpired that
the alleged offence of organized crime was committed by
the syndicate which was headed by the applicant. The
charge-sheet came to be filed on 11/09/2017.
4. Learned Counsel for the applicant submitted that the
applicant is in custody for almost 5 years since the date of
his arrest. It is further submitted that out of the 8 cases
registered against him from the year 2011 onwards, the
applicant has been acquitted in as many as 6 cases. Only 2
cases, viz, the present C.R. No. 3059/2017 and 3022/2017
are pending. Learned Counsel submitted that having regard
to these acquittals, there is no continuing unlawful activities
so as to attract the provisions of MCOC Act. Learned
Counsel submitted that even otherwise, the applicant is now
in custody for almost 5 years and hence, may be released
on bail. In support of his submission, learned Counsel
relied upon the decision of the Apex Court in the case of
State of Maharashtra Vs. Shivaji Ramaji Sonwane
(2015) 14 SCC 272.
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5. Learned Counsel then relied upon the decision of this
Court dated 03/03/2020 in the case of Mahesh Munna Pal
Vs. State of Maharashtra in Criminal Bail Application
No. 922 of 2018 to submit that in respect of offence
punishable under MCOC Act, this Court had enlarged the
applicant on bail as he was in custody for more than four
and half years.
6. So far as offence under NDPS Act is concerned, it is
contended that the procedure adopted by the raiding
authority is against the mandate of section 50 of the NDPS
Act. He submits that conditions mentioned in section 50
that search of the persons shall be conducted in the
presence of Gazetted Officer or Magistrate was not fulfilled.
To support his submission, he relied upon the decision of
the Apex Court dated 29/10/2010 in the case of Vijaysinh
Chandubha Jadeja Vs. State of Gujarat in Criminal
Appeal No. 943 of 2005 and in the case of Arif Khan
alias Agha Khan Vs. State of Uttarakhand reported in
(2018) 18 Supreme Court Cases 380.
7. Learned Counsel also relied upon the decision of this
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Court dated 20/01/2022 in Criminal Bail Application No.
2295 of 2021 in the case of Sholadoye Samual Joy Vs.
The State of Maharashtra to submit that this Court had
considered the scope of section 50 in NDPS Act.
8. Learned Counsel then submitted that it is only on the
basis of the confession of the accused no.1 under section 18
of the MCOC Act that the applicant is proceeded against
with. He points out that accused no.1 has retracted his
confession wherein he had named the applicant and
therefore such confessional statement cannot be acted
upon. To support his submission, he relied upon the
decision of the Apex Court in the case of Kartar Singh Vs.
State of Punjab (1994) 3 Supreme Court Cases 569.
9. Learned APP on the other hand opposed the
application. It is her submission that the applicant is the
leader of the syndicate. She submitted that though in some
of the cases, the applicant is acquitted, but the official
website indicates that there are as many as 5 criminal cases
still pending against him. In any case, it is her submission
that merely because the applicant is acquitted in some
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cases is no ground for enlarging the applicant on bail in
view of the express language of section 3 of MCOC Act.
Learned APP relied upon the decision of Aurangabad Bench
of this Court dated 03/08/2021 in the case of Darasing
alias Maruti Vakilya Bosale and ors. Vs. The State of
Maharashtra in Criminal Appeal No. 901 of 2018 in
support of her submission.
10. Learned APP then invited my attention to sub-section
4 of section 21 of the MCOC Act. She submits that the
number of criminal cases registered against the applicant
under the various provisions of IPC and NDPS Act (8 in all)
indicates his propensity to commit the same type of offence
in future. It is her submission that this is not a case where
there are reasonable grounds for believing that the
applicant is not guilty of offence under MCOC Act.
11. Heard. Learned APP has produced a chart indicating
that there are as many as 8 offences registered against the
applicant from the year 2011 onwards. So far as item 3
(C.R.No. 3260/12) is concerned, the applicant is not an
accused, but the same is considered for applying MCOC Act
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against him, as a member of his syndicate is an accused
therein. The details are as under :
Sr. Police C.R. No. along with Sections
No. Station
1 Khadki CR/98/11 under sections 324, 323, 506, 34
2 Yerawada CR/3164/11 under sections 8(c), 21, 29 of NDPS Act
3 Yerawada CR/3260/12 under sections 8(c), 21, 22 of NDPS Act
4 Khadki CR/3015/13 under sections 22, 29 of NDPS Act
5 Khadki CR/3024/13 under sections 8, 20(b) of NDPS Act
6 Yerawada CR/3036/13 under sections 22, 29 of NDPS Act
7 Khadki CR/3071/15 under sections 8(b), 22, 29 of NDPS Act
8 Khadki CR/3022/17 under sections 8(c), 21(b), 22(b), 29 of
NDPS Act
9 Khadki CR/3059/17 under sections 8(c), 21(b), 22(b), 29 of
NDPS Act
12. For applying MCOC, as many as 9 cases are taken into
consideration against the applicant. Learned Counsel for
the applicant also placed emphatic reliance on the decision
of the Hon'ble Supreme Court in the case of Rockysingh
Jalindersingh Kalyani Vs. State of Maharashtra dated
03/02/2022 in Appeal No. 176 of 2022. The said order
reads thus :
" Leave granted.
We have heard learned counsel for the parties.
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Learned counsel for the appellant contends that the
appellant has been in custody for more than four
years and the trial has not commenced. Learned
counsel further submits that the appellant is a
handicapped person with a Jaipur foot who has lost
about 12 kgs of weight in custody with the result that
even the Jaipur foot does not fit him appropriately.
The charges are relating to the NDPS Act, 1985 and
on that account coupled with the Maharashtra Control
of Organised Crime Act, 1999 ('MCOC Act').
The counter affidavit appears to be silent on the
issue of whether the trial has commenced or not.
Learned counsel for the State fairly states that
possibly the trial would not have commenced. He,
however, opposes the bail application on the ground
that the provisions of MCOC Act have been invoked as
the appellant was found connected with a syndicate of
Aarti Misal, who is stated to be in custody. There is
no other case as per the affidavit against the appellant
except on old case under Section 307/324 of IPC.
In view of the aforesaid facts and circumstances
and looking to the fact that the trial is even yet to
commence, the appellant is in custody for four years,
the period of custody itself would logically give a
break from the syndicate the head of which is in
custody, looking at the physical condition of the
appellant, we are inclined to grant bail to the
appellant on terms and conditions to the satisfaction
of the trial court. We are granting the bail to the
appellant in the given facts of the case not to be
treated as a precedent for the other co-accused.
Apart from any other condition, the appellant
will report to local Police Station on alternate Mondays
in the forenoon. We make it clear that if the appellant
is found indulging in trade of drugs or any other
offence is detected against him, the prosecution will
be at liberty to move for cancellation of bail of the
appellant before the Trial Court itself which would be
entitled to cancel the bail in such eventuality.
The criminal appeal stands allowed accordingly."
emphasis supplied
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13. The said decision has no application in the present
facts, apart from Their Lordships clearly indicating that the
bail is granted in the given facts of the case. The said
decision cannot also be treated as a precedent.
14. It can not be lost sight of the fact that since
registering of the offence in connection with C.R. No. 3059
of 2017, it has been almost 5 years since the applicant is in
custody. The trial is even yet to commence. According to
learned Counsel for the applicant, except for C.R. No. 3022
of 2017 and 3059 of 2017 registered with Khadki Police
Station, the applicant has been acquitted in all other cases.
Learned APP, opposing this submission, nonetheless submits
that as per her instructions, the applicant has been
acquitted in 3 out the 8 cases indicated in the chart. It is
therefore undisputed that at least 3 out of 8 cases, the
applicant has been acquitted. These 8 cases together with
one registered against Jafar Abdul Shaikj (C.R. No. 3260 of
Yerawada Police Station where the applicant is not an
accused) formed the basis for grant of sanction under
MCOC. I may not be understood to have commented on
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the merits of the sanction. Suffice it to observe that the
applicant is in custody for more than 5 years and at least in
3 of the criminal cases, he has been acquitted. The
applicant is almost 61 years of age. It is the contention of
learned Counsel that the applicant was not searched in
presence of a Magistrate nor any official of the raiding party
was a gazetted officer. Prima facie, there appears to be
some substance in the submission of the learned Counsel
for the applicant. The applicant was found in possession of
non commercial quantity of drugs. The charges are relating
to the NDPS Act and coupled with the MCOC Act. The
distance of time since the applicant is in custody, is another
factor why I am inclined to allow this application. There is
definately substance in the contention of learned APP that
bail cannot be granted to the applicant unless the conditions
stipulated in sub-section (4) of section 21 of MCOC Act are
satisfied. I have formed a prima facie opinion keeping in
mind the circumstances viz. the number of acquittals in
criminal cases; the conditions under section 50 of NDPS Act
prima facie are not fulfilled; and the period the applicant
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has spent in custody which would logically give a break
from syndicate of which the applicant is alleged to be the
head. It is made clear that these are prima facie
observations for considering enlarging the applicant on bail
and the trial Court to proceed with the trial on its own
merits without being influenced by the observations made
in this order.
15. However, while releasing the applicant on bail, it is
necessary to impose strict conditions on the applicant as
most of the offences which are registered against him are in
the area of Khadki and Yerawada which are in Pune district.
It is therefore necessary to keep the applicant away from
the Pune district during the pendency of the trial. Hence,
the following order.
ORDER
(i) The applicant is released on bail in connection with C.R. No. 3059 of 2017 registered with Khadaki Police Station on his furnishing PR bond of Rs.30,000/- with one or more sureties in the like amount.
(ii) The applicant shall remove himself from Pune district 11
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(iii) He shall furnish the residential address of the place where he intends to reside while outside the Pune district to the trial Court as well as Investigating Officer.
(iv) He shall report to the nearest Police Station to the place of his residence while on bail on every Monday between 11.00 a.m. and 1.00 p.m.
(v) It is made clear that if the applicant is found indulging in trade of drugs or any other offence is detected against him, the prosecution will be at liberty to move for cancellation of bail of the applicant before the trial Court itself which would be entitled to cancel the bail in such eventuality.
(vi) The applicant is permitted to enter the Pune district only for the purpose of attending the trial and date so fixed or on any other occasion with the leave of the trial Court.
16. The application is disposed of.
(M. S. KARNIK, J.) 12