Bombay High Court
Central Bureau Of Investigation vs Pradeep Balchandra Sawant on 14 July, 2010
Author: Ranjana Desai
Bench: Ranjana Desai
AJN
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL NO.764 OF 2007
Central Bureau of Investigation )
EOU-VIII, Block No.3, 6th Floor, )
CGO Complex, Lodhi Road, New )
Delhi - 03. ) .... Appellant
Versus
1 Pradeep Balchandra Sawant, )
R/o. 18, Amba Bhavan, 3rd )
Floor, Matunga, Mumbai. )
2 State of Maharashtra ) .... Respondents
Mr. Raja Thakare with Mr. A.M. Chimalkar for the
appellant.
Mr. Shekhar Naphade, senior counsel with Mr. M.K.
Kocharekar for respondent 1.
CORAM : HON'BLE SMT. JUSTICE
RANJANA DESAI.
DATE ON WHICH THE JUDGMENT IS
RESERVED : 30TH JUNE, 2010.
DATE ON WHICH THE JUDGMENT IS
PRONOUNCED : 14TH JULY, 2010.
JUDGMENT:-
1. By judgment and order dated 26/6/2007, MCOCA Special Court, Pune, discharged Pradeep Bhalchandra ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 2 Savant, accused 65 (for convenience, "A-65") from MCOCA Special Case No.2 of 2003 commonly known as Telgi Stamp Case of Bund Garden Police Station, Pune.
The Central Bureau of Investigation (for short, "the CBI") preferred the present appeal under Section 12 of the Maharashtra Control of Organized Crime Act, 1999 (for short, "the MCOCA") against the said order being aggrieved by the discharge of A-55. The Division Bench of this court (Dr. Radhakrishnan, J. and Smt. Roshan Dalvi, J.) heard this appeal and delivered separate judgments on 27/2/2008. While Justice Dr. Radhakrishnan concurred with the MCOCA Special Court and confirmed the discharge of A-65, Justice Smt. Roshan Dalvi set aside the discharge order and directed the MCOCA Special Court to frame charge against A-65 and proceed with the trial in accordance with law.
2. One Vashitha Rambhau Andhale, original accused 55 (for short, "A-55") in the said case was also discharged by the Special Court vide a separate order of the same ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 3 date i.e. 26/6/2007. Being aggrieved by the said order, CBI preferred Appeal No.763 of 2007 to this court. That appeal was also heard by the same Division Bench of this court (Dr. Radhakrishnan and Smt. Roshan Dalvi, JJ.) In that case also, the Division Bench delivered separate judgments on 27/2/2008. While Justice Dr. Radhakrishnan concurred with the MCOCA Special Court and confirmed the discharge of A-55, Justice Roshan Dalvi set aside the discharge order and directed the MCOCA Special Court to frame charge against A-55 and proceed in accordance with law.
3. In view of the difference of opinion in accordance with section 392 of the Code of Criminal Procedure, 1973 (for convenience, "the Code"), the office placed this appeal along with Criminal Appeal No.763 of 2007 before the Hon'ble the Chief Justice (Shri Swatanterkumar, J. as His Lordship then was) for appropriate orders. The Hon'ble the Chief Justice directed that both the appeals be placed before me.
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4. Basic facts involved in Appeal No.763 of 2007 and the present appeal are the same as they arise out of the same case. The role of present respondent 1 A-65 and the role of A-55 however defer. Appeal No.763 of 2007 was heard by me at some length and by a reasoned order I have disposed it of today. When the hearing of Appeal No.763 of 2007 began, Mr. Naphade, learned senior counsel appearing for the present respondent 1 - A-65 informed me that he wants to raise two preliminary objections. He submitted that he may be permitted to raise those objections because they arise in both the appeals and if Appeal No.763 of 2007 is entertained without hearing those objections that will adversely affect the present appeal. With the consent of all counsel, I permitted Mr. Naphade to raise the objections. I heard him as well as Mr. Thakare counsel for the CBI at some length. In my judgment in Appeal No.763 of 2007 I have dealt with the preliminary objections. It is, therefore, not necessary to reproduce and deal with those objections in ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 5 this judgment. Counsel are agreed that in this case, I will have to deal with the entire case afresh. Hence, I proceed to do so.
5. It is necessary to begin with the facts of the case. It appears to be the prosecution case that on 7/6/2002, a Tata Indica car occupied by three persons was intercepted by Bund Garden Police, Pune, near S.T. Stand near Pune Railway Station. The search of the vehicle and the occupants revealed that the three occupants i.e. original accused 1 to 3 were possessing counterfeit Government Stamps and Stamp Papers. On these facts, FIR was registered at Bund Garden Police Station vide C.R. No.135 of 2002 under section 120(b), 255, 259, 260, 263(a) (b), 478m 472 and 474 of the Indian Penal Code (for short, "the IPC") read with section 34 of the IPC. Further investigation of this case resulted in massive recovery of Counterfeit Stamps and Stamp Papers as well as printing machinery and stationery worth crores of rupees. It appears that looking to the enormity of the offence and ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 6 the type of investigation required, the State of Maharashtra constituted a Special Investigation Team (for short, "the SIT") to be headed by DIG, Shri S.K. Jaiswal vide Government Resolution dated 2/11/2002. The provisions of the MCOCA were applied to this case. The SIT continued the investigation and from time to time filed charge sheets and supplementary charge sheets till the investigation was transferred to the CBI vide order dated 15/3/2004 in Civil Writ Petition No.522 of 2003 by the Supreme Court. The CBI scrutinized the role of all the accused persons and filed a composite charge sheet on 26/7/2005 which included R-1 herein i.e. A-65. The case is numbered as Special Case No.2 of 2003. Role and involvement of A-65 is described in the said charge-sheet in detail.
6. The proposed charge to which my attention is drawn by Mr. Thakare, inter alia, states that during the period from December, 1993 to January, 2003 at various places in Maharashtra, A-65 along with others entered into a ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 7 criminal conspiracy and/or was a member of a criminal conspiracy and was party to the continuing unlawful activities, carrying on various illegal acts in an organized manner as member of an Organized Crime Syndicate, which continued even after 21/2/1999 when the MCOCA came into force thus, bringing all unlawful activities of the Organized Crime Syndicate under its purview and these activities continued till January, 2003 by which time, it extended to other States. The proposed charge further states that A-65 and others, who were working as public servants rendered help and support to the Organized Crime Syndicate and they have dishonestly and intentionally prepared records in the manner, which they knew to be false with a view to diluting the enormity of the crime or to suppress the offence and they have also failed to ensure making of proper records with intention to save the members of the Organized Crime Syndicate from legal punishment. The proposed charge states that the said public servants which include A-65 intentionally omitted to apprehend such persons and rendered help ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 8 and support in commission of organized crime or abstained from taking lawful measures under the MCOCA with the knowledge that they will thereby cause loss to the national exchequer. The proposed charge thus states that A-65 along with others committed an offence under section 120-B of the IPC. The proposed charge further states that A-65 being a public servant did also resort to illegal acts and abetted the activities of the Organized Crime Syndicate and obtained several mobile phones for facilitating the communication with the members of the Organized Crime Syndicate for furthering its illegal activities. Such acts of A-65 are set out in the proposed charge. They are -
"Seventy Secondly :
In furtherance of the said criminal conspiracy and during the course of same transaction, you accused no.65 being a public servant in your capacity as the Deputy Commissioner of Police, Crime Branch (Det) Mumbai, between the period from 2000 to November, 2003 by abusing your official position rendered help or support to the continuing unlawful activities of the Organized Crime Syndicate ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 9 through accused no.44, who is a member of the Organized Crime Syndicate and accused No.50, who was immediate supervisory officer of accused no.44 and abetted or knowingly facilitated the commission of an Organized Crime or act preparatory to the Organized Crime by doing the following acts of commission and omission intentionally with due deliberation viz.
(a) Willfully and intentionally neglected the reported unauthorized visit by accused no.44 with accused no.23 to Khanapur Dist., Belgaon and Goa although you were the supervisory officer of the unit.
(b) Caused the accused no.23 to be kept out of the lock-up during his custodial period and thereby facilitated him to continue with the unlawful activities of the Organized Crime Syndicate and aided him in negotiating for the disposal of his properties, which were liable to be attached under the provisions of the MCOC Act.
(c) By falsely showing or causing to be shown the seizure of the Counterfeit Government Stamps and Stamp Papers carried out by accused no.44 in CR No. 73/2002 of Crime Branch by arresting Sayyed Hamid Habib Sayyed, knowing or having reasons to believe that this seizure had no relation with the earlier seizure in respect of which the crime had been registered.
(d) Not causing the arrest of accused no.
23, who was in police custody of Crime ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 10 Branch Unit-V Dharavi, till 21/01/2003, though he was detected as an accused in CR No.73/02 as per the case diaries dated 15/01/2003 and 18/01/2003 instead permitting him to be remanded back to judicial custody of Karnataka State at Bangalore Jail and thereafter not taking any action though he was not shown as wanted / suspect accused in the chargesheet filed on 10/4/2003.
(e) Falsely showing or causing to be shown the recovery of the Counterfeit Govt. Stamps and stamp papers worth Rs.
827 Crores from godown at Bhiwandi Dist. Thane at the instance of accused no.25 on 11/12/01/2003, when it was at the instance of accused no.23, by conniving at the drawing up of the recovery panchanama by accused no.44 despite the knowledge that IO, API Agarkar was actually on station house duty at the Crime Branch.
(f) By not neutralizing accused no.44 from the ongoing investigation in the case against accused no.23, though, on 09/01/2003, he was telephonically ordered by accused no.60 to place accused no.44 under suspension on receipt of the complaint from DIG S.K. Jaiswal and Addl. D.G. Shri R. Srikumar of the Karnataka State regarding the creature comforts being afforded to accused no.23 at his residence at 7 Cuffe Parade, Mumbai when in fact accused no.23 ought to have been in police custody lock-up.
(g) Conducting an enquiry in perfunctory manner in respect of accused no.55 with a view to suppress the help rendered to the ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 11 Organized Crime Syndicate by accused No. 55 having not seized the Counterfeit Govt. Stamps and stamp papers, which were recovered by him whilst working as a PI at Sahar Air Port Crime Unit on 20/05/2002 and not causing to arrest and causing to register a case as also not arresting and interrogating accused no.6 and 34, who are the members of the organized crime syndicate headed by accused no.23 and thereby giving a clean chit to accused No. 55 and thus abused your position while holding office as a public servant and obtained for accused no.55, who had received an illegal gratification of Rs.15 lacs, a pecuniary advantage thereby committed an offence punishable u/s. 3(2) & 24 of the MCOC Act, 1999 and sec. 13 (2) r/w 13(1)(d) of the PC Act, 1988 & r/w 120- B of the IPC and within my cognizance."
7. There are in all 68 accused involved in this case. Two of them expired during the pendency of the trial. One accused is absconding. Forty three accused pleaded guilty to the charge framed against them. They have been convicted. The main accused AKL Telgi is one of those who pleaded guilty. He has been convicted.
Eighteen accused are now facing charges. Out of the 18 accused, who are to be tried as stated hereinabove, A-65 ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 12 made an application for discharge under section 227 of the Code. Learned Special Judge by the impugned order discharged A-65. Being aggrieved by the said order, the CBI has filed the present appeal.
8. Arguments were advanced on the scope of Section 227 of the Code. Mr. Thakare, learned counsel appearing for the CBI submitted that at the time of framing of the charge, the court has to see whether, there exists material to proceed further and not whether the material so available will definitely result in conviction of the accused. Counsel submitted that the defence of the accused is not to be considered at this prima facie stage and meticulous examination of the material is not expected to be undertaken. Counsel submitted that there is enough evidence collected by the prosecution against A-55 giving rise to grave suspicion against him and, hence, trial court erred in discharging him. He submitted that evidentiary value of the material collected during investigation can be determined only on examining the ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 13 witnesses and not at this stage. Mr. Naphade, learned counsel for A-65 on the other hand submitted that when the allegations made in the statements of witnesses taken at their face value make out absolutely no case against the accused or do not disclose essential ingredients of the offence alleged, the accused is entitled to be discharged.
The court, even at the initial stage is required to evaluate the material and documents on record to find out if the facts disclose the existence of the offence. The court may for this limited purpose sift the evidence. Patently absurd and inherently improbable allegations are to be discarded.
Counsel submitted that if two views are equally possible and the judge is satisfied that the material produced before him gives rise to some suspicion and not grave suspicion against the accused, he will be fully justified in discharging the accused. Counsel submitted that when the judge is certain that there is no prospect of the case ending in conviction, the accused need not be made to undergo the agony of a criminal trial. Counsel submitted that the material collected by the prosecution does not ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 14 disclose any offence against A-65. There is absolutely no prospect of a conviction and hence the trial court rightly discharged A-65.
9. In support of their submissions, learned counsel relied on the judgments of the Supreme Court in State of Bihar v. Ramesh Singh (1977) 4 SCC 39; Union of India v.
Prafulla Kumar Samal, AIR 1979 SC 366, Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Bhunja & Ors. AIR 1980 SC 52;
Niranjan Singh Karam Singh Punjabi v. Jiendra Bijja & Ors. AIR 1990 SC 1962; State of Maharashtra & Ors. v. Som Nath Thapa & Ors. (1996) 4 SCC 659 State of Maharashtra v. Priya Sharan Maharaj & Ors. AIR 1997 SC 2041, State of Karnataka v. L. Muniswamy & Ors. (1977) 2 SCC 699 and R.P. Kapur v. The State of Punjab, AIR 1960 SC 866
10. In Govind Sakharam Ubhe v. State of Maharashtra, 2009(3) BCR (Cri.) 144 this court has ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 15 summarized the law after considering the above judgments as under :
"The principles laid down by the Supreme Court in the above cases need to be summarized. It is settled law that at the stage of Section 227 of the Code, the court has power to sift the materials collected by the prosecution to find out whether there is prima facie case against the accused or not. The court has to be satisfied that there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him. The Court's enquiry must not be directed to find out whether the case will end in conviction. However, though roving enquiry is not permissible, the court can consider whether the material collected by the prosecution if accepted as it is without being subjected to cross-examination gives rise to strong and grave suspicion for presuming that the accused has committed the offence and that unrebutted material will lead to a conviction. If at the stage of Section 227 or Section 228, the scales as to the guilt or innocence of the accused are even then the court must proceed to frame a charge. There is no question of giving benefit of doubt to the accused and discharge the accused at that stage because the scales are even. That can be done only at the conclusion of trial. If there is a strong suspicion which leads ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 16 the court to think that there is a ground for presuming that the accused has committed an offence, then the court will proceed to frame the charge. But if two views are possible and the court is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, the court will be within its right to discharge the accused. Suspicion has to be strong and grave suspicion leading the court to presume that the accused has committed an offence. While basic infirmities and broad probabilities can be considered, the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting a trial. Probative value of the material cannot be gone into at that stage."
11. My attention is drawn to a recent judgment of the Supreme Court in P. Vijayan v. State of Kerala & Anr., 2010 Cr.L.J. 1427. In that judgment, the Supreme Court has reiterated the same principles and stated that whether materials in the hands of the prosecution are sufficient or not are matters for trial. At the stage of dealing with discharge application whether the trial will end in conviction or acquittal is also immaterial. The Supreme Court confirmed the High Court's judgment ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 17 where the High Court had after evaluating the material produced before it held that there were sufficient grounds against the appellant for framing charge. Keeping the above principles in mind, I shall approach this case.
12. Mr. Thakare, learned counsel for the CBI has submitted written submissions and has reiterated them in the court.
It is necessary to give gist of those
submissions.
Submissions on behalf of CBI on the merits of the case.
(a) The Special Court has erred in discharging A-65 because there is ample prima facie material collected by the prosecution to give rise to a strong suspicion leading the court to come to a conclusion that A-65 has committed the offences with which the Investigating Agency proposes to charge him. There is no direct evidence against him, but the circumstantial ::: Downloaded on - 09/06/2013 16:08:50 ::: AJN 18 evidence is complete and the chain of circumstances unerringly points to his guilt.
(b) A-65 was holding a very high position in the Crime Branch, Mumbai. He was immediately below the Joint Commissioner of Police (Crime) -
A-59. He was holding the post of DCP (Detection) and he was to supervise all the cases of the Crime Branch. The Organized Crime Syndicate headed by Kingpin AKL Telgi had committed several crimes relating to counterfeit stamps and stamp papers and cases in respect thereof were pending in Mumbai during the relevant time. AKL Telgi and some officers of the Mumbai Police conspired and ensured that AKL Telgi's custody would remain only with Crime Branch so that it would be under the close circle of police officers who were won over by him. There is evidence to establish that between the period from 2000 to ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 19 November, 2003, A-65 abused his official position and rendered help to AKL Telgi's Organized Crime Syndicate through A-44 API Kamat and A-50 Sr. P.I. Dal.
(c) Though directed by A-59 to seek details of involvement of AKL Telgi in various cases, after fake stamps and stamp papers were recovered on 7/6/2002 in Pune in Bund Garden Police Station CR No.135 of 2002, A-65 did not take any further steps. On the contrary, he entered into a criminal conspiracy with A-50 and A-44 to render help to AKL Telgi's Organized Crime Syndicate. After getting to know about the involvement of some of the arrested accused along with AKL Telgi in CR No.123 of 2001 registered at Shahu Nagar Police Station in which one Christopher driver of AKL Telgi was murdered, A-59 the then Joint Commissioner (Crime) in violation of norms of transfer ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 20 directed the transfer of the said case to Crime Branch, Unit V, Dharavi where A-44 Dilip Kamat was attached. This transfer order was signed by A-65. A-44 was the investigating officer of CR No.78 of 1998 registered at Crime Branch, Dharavi Unit VIII where AKL Telgi was involved and despite knowledge of this fact, AKL Telgi was not arrested till his custody was obtained by Crime Branch Unit V on 18/10/2002. He was belatedly shown arrested in CR No.78 of 1998 on 11/11/2002. A-65 as a supervisory officer did not enquire as to why AKL Telgi was not arrested till 18/10/2002 in this case.
(d) In order to retain the custody of AKL Telgi with Crime Branch whose officers were subverted by AKL Telgi, vide order dated 22/11/2002, A-59 transferred seven cases of similar nature registered at various police stations to Crime Branch. These transfers are not innocuous, but ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 21 a part of the criminal conspiracy to which A-65 is a party.
(e) AKL Telgi was arrested by Karnataka Police on 8/11/2001 in a similar case and was lodged in Bangalore Jail. Karnataka Police have made available to the investigating agency transcript of the intercepted conversation between AKL Telgi and his advocate Abdul Rashid Kulkarni, who is also an accused (A-49). In this conversation, A-65 is referred to, which indicates that he was subverted by AKL Telgi.
(f) AKL Telgi was in the custody of Crime Branch from 28/10/2002 to 21/1/2003. In CR No.41 of 1995 of GBCB CID AKL Telgi's police custody was granted till 24/1/2003. In Remand Application dated 20/1/2003, it was stated that his custody was needed as he was to be put in Identification Parade. Yet, on 21/1/2003, his ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 22 custody was prematurely surrendered to Government of Karnataka. This was shocking because AKL Telgi was brought to Mumbai by lifting a ban imposed on such transfer under Section 268 of the Criminal Procedure Code.
A-65 cannot deny knowledge of these facts.
(g) While in the custody of Crime Branch, to the knowledge of A-65, AKL Telgi was not seriously interrogated and was not kept in a lock-up but was kept in the office of Crime Branch Unit V, Dharavi. He was allowed to visit places of his choice and had made frequent trips to his residence at 7, Cuffe Parade. Report submitted by Mr. Jaiswal, DIG, SIT dated 10/1/2003 in respect of his visit to AKL Telgi's flat at 7, Cuffe Parade on 9/1/2003 makes this clear. The investigation further discloses that DIG Jaiswal had telephonically informed A-65 about illegal movements of AKL Telgi, but A-65 did not take ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 23 any concrete measures to prevent it. Though A-65 was telephonically informed to suspend A-44 Dilip Kamat who was giving active support to AKL Telgi, A-65 did not ensure his immediate suspension, but permitted him to continue with the investigation.
(h) Instead
of taking steps to withdraw
investigation from A-44 Dilip Kamat in order to glorify A-44 and to cover his wrong deeds, which were known to A-65, a huge seizure of counterfeit stamps and stamp papers effected on 11-12/01/03 at Vanmala compound godown at Bhiwandi was shown to be a seizure at the instance of one Shabbir Ahmed. Instead of registering a separate case, this seizure was shown in CR No.73 of 2002 registered at Kurla Police Station wherein one Nandesh and Santosh were arrested. A-65 knew that the seizure effected in CR No.73 of 2002 was not at ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 24 the instance of members of AKL Telgi gang.
Seizure effected at Bhiwandi was at the instance of AKL Telgi and separate case should have been registered in respect thereof.
Instead of doing that, this seizure was shown at the instance of Shabbir Ahmed and was linked to CR No.73 of 2002. AKL Telgi was not shown as an accused in this case. This was done to protect AKL Telgi, because Shabbir Ahmed had given confession inculpating AKL Telgi in CR No. 135 of 2002 of Bund Garden Police Station.
(i) A-44 API Kamat visited Bangalore on 21/7/2002 and on 28/7/2002. His visit outside Maharashtra had to be approved by A-65. A-65 illegally permitted him to go to Bangalore. On 29/7/2002, a huge seizure of counterfeit stamps and stamp papers worth Rs.830 crores was effected in Hyderabad at the instance of one Sayeed Hameed. It was shown that Nandesh ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 25 and Santosh who were arrested in CR No.73 of 2002 had given information about it. Sayeed Hameed was brought to Bombay by A-44 API Kamat and was shown arrested in CR No.73 of 2002. Though this seizure was at the instance of AKL Telgi, A-44 API Kamat who was in touch with AKL Telgi during his incarceration in Bangalore jail showed it as a seizure at the instance of Sayeed Hameed so as to weaken the prosecution case. A-65 issued a Press Note on 4/9/2002 under his signature glorifying A-44 API Kamat and showing Hyderabad seizure as a part of CR No.73 of 2002 knowing that CR No.73 of 2002 was not registered in respect of AKL Telgi's gang.
(j) An anonymous complaint was received by Joint Commissioner of Police (Crime). It was in respect of raids effected by Crime Branch, Dharavi Unit V on 20/5/2002 at the offices of ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 26 AKL Telgi at Andheri and at Fort, Mumbai. Raids were effected by A-55 and PI Darekar. The staff members of the offices were interrogated and allowed to go. A-55 had played a major role in it. In the complaint, it was alleged that senior police officers had allowed those persons to continue to operate in the same business. This complaint was marked to A-65 on 7/4/2003 for inquiry. A-65 conducted a perfunctory inquiry, recorded stereotype statements and submitted report vide letter dated 19/5/2003 stating that the allegations were unsubstantiated. Thus, A-55 was given a clean chit by A-65 obviously knowing the correct facts and this was done pursuant to the conspiracy.
(k) In this case, conspiracy is a foregone conclusion. At this stage, the court is not expected to do meticulous examination of the material. There is sufficient material on record ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 27 to indicate the complicity of A-65. There is grave and strong suspicion to presume that A-65 has committed the offence and, therefore, the Special Judge has wrongly discharged A-65.
Impugned order must, therefore, be set aside.
13. Mr. Naphade, learned senior counsel for A-65 has submitted written submissions and has reiterated them in the court. It is necessary to give gist of those submissions.
Submissions on behalf of A-65 on the merits of the case.
(a) A-65 has unblemished meritorious career.
There is no material to show that he entered into any agreement for printing and selling of fake stamps. There is no evidence to show that A-65 has obtained any undue pecuniary advantage or he is a member of the Organized Crime Syndicate.
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(b) The charge that A-65 abused his official position and rendered help and support to the Organized Crime Syndicate through A-44 Dilip Kamat and A-50 Dal cannot stand the scrutiny of the court.
The Commissioner of Police heads the police force of Mumbai. Below him, are Joint Commissioner of Police (Crime), Additional Commissioner of Police (Crime), Deputy Commissioner of Police (Detection), Senior Police Inspector (Unit), Police Inspector, API and staff. Below A-65, there were three ACPs and Sr. P.Is. who were supposed to monitor 20 units of Detection of Crime Branch located at various places. Several serious offences are handled by these officers and A-65 was not expected to monitor each step taken by every officer.
There is no evidence to show that A-65 had any knowledge about the alleged crime committed by A-44 or A-50. It was ACP Padwal, who was to ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 29 report the progress of investigation and he has not disclosed any illegality committed by A-44.
During the relevant period, A-65 was concerned with the investigation of bomb blast cases and had no time to monitor other cases. His office was situated at Crowford Market whereas office of A-44 and A-50 was situated at Dharavi.
(c) There is an attempt to target a few officers. ACP Padwal has in his statement stated that he was busy with bomb blasts. This applies to A-65 also. Yet, only A-65 is sought to be charge-
sheeted. Old cases of 1995 are being cited by the prosecution. AKL Telgi was shown arrested in CR No.135 of 2002 only on 30/9/2002. Till then, he was not known and therefore, from 1995 to 2002 no steps were taken. For that, Crime Branch cannot be held responsible. Crime Branch cannot conduct a parallel investigation.
A-65 was not Investigating Officer of those ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 30 cases nor was he unit in-charge. In normal course, these cases do not travel beyond ACP.
Therefore, A-65 cannot be held responsible for the inaction of the police in those old cases. The prosecution is trying to prove constructive notice. This could, at the most, be a case of failure of system. Criminal prosecution cannot be initiated on extremely pereferial material.
Extra ordinary reasons must be given to justify such attempt.
(d) The allegation that A-44 Kamat's unauthorized visit to Khanapur in Karnataka was intentionally not reported by A-65 and that he was to approve the visit and he illegally permitted A-44 to visit Khanapur is not substantiated. The record shows that it was ACP Padwal who gave permission. In fact, this visit was not unauthorized. It was in respect of CR No.68 of 2002 of Shahunagar Police Station as would be ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 31 evident from the statement of PSI Desai of Khanpur Police Station.
(e) If AKL Telgi was not kept in lock-up during his police custody, but was kept in office of Unit No.V, Dharavi, A-65 is not responsible for it.
Statement of ACP Padwal shows that this was done as per the instructions of Commissioner of Police, Mumbai. In any case, there is no prohibition in keeping the accused in unit instead of lock-up which is 10-15 kms. away from Dharavi unit.
(f) There is no substance in the allegation that A-65 permitted AKL Telgi to use mobile phone while in custody. There is no material to show that A-65 had knowledge about use of mobile phone by AKL Telgi while in custody. DIG Jaiswal has in his report stated that he had searched the personal belongings of AKL Telgi ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 32 when he visited his Cuffe Parade flat. Accused Janvekar has in his statement stated that AKL Telgi had a mobile phone. Jaiswal could have seized the mobile phone. He did not take any action against those who were present. His inaction reflects on his credibility.
(g) Charge that AKL Telgi was allowed to dispose of his properties while in custody is baseless because no property has been disposed of by him as alleged.
(h) It is alleged that in order to glorify A-44 Kamat, A-65 has falsely shown seizure of counterfeit stamps and stamp-papers carried out by A-44 at Hyderabad in CR No.73 of 2002 of Crime Branch by arresting Sayyed Hamid knowing that that seizure had no relation to seizure effected in CR No.73 of 2002. No separate case was registered.
::: Downloaded on - 09/06/2013 16:08:51 :::AJN 33 There is no material on record to show that A-65 had any knowledge about the alleged irregularity committed by A-44 Kamat by showing the Hyderabad seizure in CR No.73 of 2002. API Agarkar, the Investigating Officer has written seven crime reports about this case.
They do not suggest that Hyderabad seizure has no relation with seizure of CR No.73 of 2002. There is no material on record to establish that A-65 had given any direction to Agarkar or A-44 about the said seizure. The alleged Press Note dated 4/9/2003 which was signed by A-65 is in conformity with the said crime reports. Since, ISP Nasik report had not come, A-65 had no reason to disbelieve the Hyderabad recovery. DCP Wakade of SIT and ACP Padwal have not found fault with this seizure after SIT took over the investigation.
Therefore, A-65 cannot have any knowledge ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 34 about the alleged irregularity committed by A-44 because he was not the investigating officer. Press Note dated 4/9/2003 on which reliance is placed is merely a photocopy, no original note is produced and hence cannot be relied upon.
(i) It is alleged that though case diaries dated 15/1/2003 and 18/1/2003 show AKL Telgi as the accused in CR No.73 of 2002 and AKL Telgi was in Crime Branch custody in CR No.41 of 1995 from 17/1/2003 to 24/1/2003 his custody was surrendered and he was not arrested in CR No. 73 of 2002. If it was the case of the concerned Crime Branch Officers that AKL Telgi was involved in this case, he should have been arrested promptly.
The issue of surrender of custody is not relevant to CR No.135 of 2002. In any case, PSI ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 35 Mane of Unit V had obtained custody of AKL Telgi from Karnataka court and PI Khade had surrendered it. The decision to postpone the arrest of AKL Telgi in CR No.73 of 2002 can be attributed to A-50 PI Dal and not to A-65.
(j) It is alleged that a fake recovery of counterfeit stamps and stamp papers worth Rs.827 crores was shown at the instance of Shabbir on 11-12/01/2003 at Bhiwandi when it was at the instance of AKL Telgi. It is alleged that A-65 was aware about this seizure as he had personally visited Unit V, Dharavi. A-65 knew that AKL Telgi was not an accused in CR No.73 of 2002 yet this recovery was shown to have been effected in CR No.73 of 2002.
This charge cannot be sustained because statements of witnesses show that A-65 was not present in Bhiwandi during this seizure, he was ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 36 not party to fabrication of the panchnama and he was not present when the decision to fabricate the panchnama was taken by A-59 Wagal and A-50 Dal. Statement of A-65's driver shows that on 12/1/2003 A-65 came out of Dharavi unit at 12.45 p.m. and went home.
Anant Kotiyan, pancha to the seizure panchnama has stated that one Maqsood had shown the godown. Maqsood has stated that he had shown the godown whereas ACP Padwal has stated that a third person had shown the godown. In that case, discovery was shown in the name of main associate but AKL Telgi was not given a clean chit. He was charge-sheeted in the said case.
(k) DCP Koregaonkar's statement indicates that Shabbir Shaikh revealed information about one more godown in Dal Mill compound at Bhiwandi and Maqsood stated that the key of the said ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 37 godown was with Khalid. Khalid and Asif were in SIT custody. DIG Jaiswal has in his report stated that large number of counterfeit stamps lying in a compound are yet to be detected. Yet SIT did not make effort to discover the said godown and seize the stock. In fact A-65 in his letter dated 16/1/2003 had given instructions to the investigating officer to compare the Biwandi seizure with Pune seizure. Instructions given by A-65 to the investigating officer are so elaborate that they militate against any inference that A-65 is a part to any conspiracy.
(l) The allegation that the officers of Crime Branch Unit V, with the object to let Telgi go scotfree have shown totally unconnected seizures as part of CR No.73 of 2002 is devoid of substance.
In fact, charge-sheet has been filed against him and it is CBI who has discharged him in CR No. 73 of 2002.
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(m) It is alleged that DIG Jaiswal had visited Cuffe Parade flat of AKL Telgi on 9/1/2003 and found that AKL Telgi was allowed to stay in his flat through he was in police custody and he was given all creature comforts. DIG Jaiswal has stated in his report dated 10/1/2003 that on 3/1/2003 he had telephonically informed A-65 about this. A-65 was ordered to suspend A-44 Kamat on telephone on 9/1/2003, but A-65 did not do so.
This allegation is devoid of substance because DIG Jaiswal had in his report made general allegations. There were no specific allegations about A-44 Kamat. In any event, A-65 immediately conveyed what DIG Jaiswal had stated on telephone to his superior officers.
This is evident from letter dated 24/3/2003 addressed by A-65 to DCB (Operations). In this ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 39 letter A-65 has stated that after he received the call, he had reprimanded the concerned officers of Unit V, Crime Branch and told them not to indulge in any illegal acts. He has stated in the said letter that A-50 PI Dal had told him that efforts were on in many directions to seize hoarded piles of fake stamps from AKL Telgi.
Noting of Joint Commissioner of Police bear out this case of A-65. DIG Jaiswal has also stated in his report about this. A-65 had no reason to disbelieve this version of the officers.
(n) DIG Jaiswal had stated that godown where fake stamps were stored was yet to be discovered.
Two days after this incident, officers of Unit V, Dharavi discovered Rs.830 crores worth stamps from Bhiwandi belonging to Telgi gang. This godown remained to be discovered by DIG Jaiswal and SIT even though sufficient clues were with them.
::: Downloaded on - 09/06/2013 16:08:51 :::AJN 40
(o) In any case AKL Telgi was in police custody of Unit V. Case of Unit V officers is that AKL Telgi was taken to 7, Cuffe Parade for a trap. For a trap, which was to be arranged during investigation, the officers were not required to take any permission of DCP to take AKL Telgi out of the lock-up. A-50 Dal and ACP Padwal had admitted that a trap was laid at 7, Cuffe Parade. If recovery was not made, Crime Branch could have been held responsible.
There is no evidence on record to suggest that A-65 was informed about the incident at 7, Cuffe Parade by anybody.
(p) DIG Jaiswal was appointed to investigate Pune case. He has exceeded his brief. DIG Jaiswal is guilty of omissions. He did not seize mobile phone of AKL Telgi which was allegedly used by him. He did not take any action against ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 41 Janvekar brothers who were present there and who were later on arrested by Delhi police. If the prosecution is not holding DIG Jaiswal responsible for the Cuffe Parade incident, it cannot hold A-65 guilty for the same particularly when he was not present in the flat when the incident occurred.
(q) The prosecution has suppressed material facts.
DIG Jaiswal report is addressed to Additional Chief Secretary (Home) , State of Maharashtra.
He has prayed that action should be initiated against the investigating officers and supervisory officers who were concerned with the investigation. Pursuant to this report, inquiry is conducted. The prosecution has not produced the said report. Relying on Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. & Ors. 2008 AIR (SC) 1683, it was urged that it is now open to the court to ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 42 look beyond the charge. Documents of unimpeachable character can always be taken into account for the purpose of finding out whether criminal proceedings would amount to an abuse of court. Suppression of inquiry report by the prosecution reflects on the credibility of the prosecution case.
(r) Relying on Gopal Krishnaji Ketkar v.
Mohamed Haji Latif & Ors. AIR 1968 SC 1413, it is urged that if a party who is in possession of best evidence which would throw light on the issue in controversy withholds it, adverse inference needs to be drawn against it.
(s) As regards suspension of A-44 Kamat, it is submitted that there is no record to show that A-65 was asked to withdraw prosecution from him. A-65 had no power to suspend A-44.
::: Downloaded on - 09/06/2013 16:08:51 :::AJN 43
(t) The allegation that A-65 conducted enquiry into the conduct of A-55 PI Andhale in a perfunctory manner with a view to suppressing the help rendered by him to the organized crime syndicate, is equally baseless. The alleged incident of A-55 receiving illegal gratification of Rs.15 lakhs took place on 20/5/2002. On the anonymous letter dated 9/3/2003 A-65 was directed to conduct enquiry. He examined 12 witnesses on 26/4/2003. A-65 recorded statements of these witnesses as per the version given by them and recorded his findings and submitted report which was approved by high officers like Additional Commissioner of Police (Crime) and Joint Commissioner of Police (Crime). Therefore, no criminal liability can be fastened on A-65 in this regard.
(u) The prosecution has wrongly relied on intercepted conversation between AKL Telgi and ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 44 his lawyer A-49 Rashid Kulkarni. Transcript of the intercepted conversation is not legally admissible. It's authenticity has to be established. Voice recognition has to be done.
No reliance can be placed on such evidence.
The intercepted conversation are statements of the co-accused and, they are inadmissible against A-65. For invoking Section 10 of the Evidence Act, there must be reasonable ground to believe that there exists conspiracy between the accused and the co-accused. In this case, such evidence is not available. In the conversation, there is no reference about A-65 having received any pecuniary benefit. The conversation reveals that A-65 had at no point of time communicated with AKL Telgi or with A-44 Kamat or A-49 Kulkarni. This conversation is hit by Section 6 of the Evidence Act. In this conversation, AKL Telgi and his advocate have thrown names of persons in authority including ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 45 the Chief Minister. Such evidence cannot be relied upon unless corroborated by substantive evidence, which is absent in this case.
(v) The prosecution has not been able to gather any evidence which can create even suspicion about A-65. In any case, suspicion, however, strong cannot take the place of proof. Abdulla Mohammed Pagarkar v. State (Union Territory of Goa, Daman & Diu) (1980) 3 SCC 110.
(w) There is no evidence to show that there was any agreement between A-65 and AKL Telgi.
There is no evidence of conspiracy.
(x) A-65 cannot be imputed knowledge of the misdeeds of A-44, A-50 and other police officers. There is no evidence to indicate that A-65 was in league with these officers. The ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 46 order passed by the Special Court discharging A-65 therefore does not merit any interference.
14. Learned counsel have taken me through the proposed charge and the relevant material collected by the prosecution. It is evident from the proposed charge "Seventy secondly" that the basic case of the prosecution qua A-65 is that during the relevant period i.e. from 2000 to November 2003 he abused his official position and rendered help to the activities of the Organized Crime Syndicate through A-44 API Dilip Kamat, who is a member of the Organized Crime Syndicate and A-55 who was immediate supervisory officer of A-44. A-65 is stated to have dishonestly prepared records knowing them to be false, so as to dilute the enormity of the crime or to suppress it. He is stated to have intentionally abstained from taking lawful measures against the culprits and has committed an offence under Section 120B of the I.P.C. He is also said to have abetted the activities of the Organized ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 47 Crime Syndicate. I must find out, therefore, whether the evidence collected by the prosecution bears out this case and gives rise to a strong and grave suspicion about the above allegations.
15. Since A-65 is charged with abetment, it is necessary to refer to the definition of the term 'abet' as found in Section 2(1)(a) of the MCOCA.
"2.(1)(a) "abet". With its grammatical variations and cognate expressions, includes. -
i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate;
ii) the passing on or publication of, without any lawful authority, any information likely to assist the organised crime syndicate and the passing on or publication of or distribution of any document or matter obtained from the organised crime syndicate; and
iii)the rendering of any assistance, whether financial or otherwise, to the organised crime syndicate;"::: Downloaded on - 09/06/2013 16:08:51 :::
AJN 48
16. It is also necessary to refer to Section 3 which provides for punishment for organised crime. Section 3(2) is relevant. It reads thus;
"3. Punishment for organised crime:-
(1)Whoever commits an offence of organised crime shall:-
i) xxx
igxxx xxx
ii) xxx xxx xxx
(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs."
17. The prosecution will have to, therefore, establish whether the A-65 has inter alia rendered any assistance financial or otherwise to the Organized Crime Syndicate.
He could be held guilty of abetment, if he has inter alia ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 49 knowingly facilitated the commission or has knowingly facilitated the commission of any act preparatory to organised crime. It must be noted at this stage that Mr. Thakery has conceded that there is no direct evidence against A-65. His case is based on circumstantial evidence. It needs to be seen therefore whether prima facie, chain of circumstances is complete and creates grave doubt leading me to prima facie believe that A-65 is involved in this case.
18. At the outset, it is absolutely necessary to note the hierarchy of the Crime Branch Mumbai because a lot turns on it. It is important to bear in mind that at the relevant time Mr. Wagal, who is A-59 was the Joint Commissioner of the Crime Branch. A-65 was DCP Detection. He was No. 2 in the hierarchy. ACP Padwal was the next person.
A-50 Senior PI Dal and A-44 API Dilip Kamat were also working in the Crime Branch. A-50 was immediate supervisory officer of A-44. It cannot be denied that A-65 was holding a very high position in the Crime Branch. The ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 50 Crime Branch has a unique status in the Bombay Police. I am informed that its jurisdiction extends to the entire metropolis. It conducts parallel investigation of certain important cases and such cases can be transferred to it.
The high position held by A-65, undoubtedly carried with it great responsibility.
19. During the course of arguments, it was suggested that in this case at the most the officials of the Crime Branch could be held responsible for certain irregularities or lapses but there is no aiding or abetting AKL Telgi and his gang. It could just be a case of failure of system. It was then urged that in any case, several other higher officers of the Crime Branch were equally concerned with AKL Telgi's case. They have been left out. It is pointed out that ACP Padwal was also attached to the Crime Branch. According to him, during the relevant period, he was busy with bomb blast cases. This is applicable to A-65 also. It was suggested that A-65 has been purposely targeted. Having gone through the material collected by ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 51 the prosecution and having studied the chronology of events and the pattern of investigation, I find it difficult to hold that this is a case of a mere failure of system. I feel that there is more than a mere failure of system and if the system has failed some officers have worked for such failure. Tentacles of such a huge scam would not have spread so wide without the blessings of the officers of the Crime Branch.
It is also an absurd argument that some other officers could also have been charge-sheeted but since they have not been charge-sheeted, A-65 must be absolved. It is possible that some officers who have also purposely messed with the investigation to protect AKL Telgi and his gang so as to get pecuniary benefits have been left out. But because of that, if there is adequate material against A-65 to give rise to a grave and strong suspicion about his involvement, he cannot be absolved.
Section 319 of the Code empowers the Court to proceed against a person if during the course of trial it appears to it that such person has committed any offence for which he could be tried together with the accused who is on ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 52 trial. So far as I am concerned, I will have to only examine whether the prosecution has collected evidence justifying the charge, it proposes to level against A-65.
20. Before dealing with the rival contentions, it is necessary to keep the enormity of the scam in mind. At the cost of repetition, it must be stated that forty three accused have pleaded guilty to the charge framed against them and they are convicted. These 43 include main accused A-23 AKL Telgi. The CBI was directed to take up the investigation by the Supreme Court in March, 2004 because, the Supreme Court wanted to ensure a thorough investigation by the CBI especially in view of unsatisfactory performance of the State Police and the number of police personnel and higher ups allegedly involved in the organized crime. This is evident from the order of the Supreme Court passed on 17/8/2007 in Criminal Appeal No.1088 of 2007 in Special Leave Petition (Cri.) No.6044 of 2004 filed by the CBI challenging this court's order granting bail to co-accused Pradeep Sawant.
::: Downloaded on - 09/06/2013 16:08:51 :::AJN 53 Once this background is kept in mind, everything falls in place.
21. It is now necessary to go to the chronology of the important events to understand the case of the prosecution against A-65. Material collected by the prosecution discloses certain glaring facts. A-55 API Andhale was posted at DCB, CID, Unit VIII Dharavi, Mumbai as Police Inspector in 1998. On 16/12/1998, he led the raiding party consisting of various police officers including API Kamath (A-44) in the Fort area. Zameer Sanadi (A-34) and Tarbez Telgi (A-64), the nephew of kingpin AKL Telgi were arrested and counterfeit stamps and stamp papers were seized from them. On the basis of PSI Shinde's complaint, C.R. No.78 of 1998 was registered on 17/12/1998 against Zameer Sanadi (A-34), Tarbez Telgi (A-64) and one other person. A-44 Kamath was the Investigating Officer of this case. The arrested accused were released on bail. AKL Telgi was not shown as an accused though his involvement was disclosed. No ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 54 effective steps were taken in the investigation.
22. On 20/5/2002, on information of A-55 PI Andhale simultaneously, raids were conducted at the office of Mark Enterprises, Andheri and at the office of S.S. Services at Fort Mumbai by A-55 Andhale and PI Darekar respectively.
A large quantity of counterfeit stamps and stamp papers were recovered. The staff members of both the officers and Zameer Sanadi (A-34) and Firoz Shaikh (A-6) were called to the office of Sahar Airport Unit. Investigation disclosed that A-55 accepted a sum of Rs.15 lakhs from Sajju (A-8) and allowed A-34, A-6 and the staff members to go scotfree with counterfeit stamps and stamp papers.
No arrests were made. No offence was registered. As already stated, on 7/6/2002, a Tata Indica car was intercepted by Bund Garden Police, and three persons, who were in possession of huge quantity of counterfeit stamps and stamp papers were arrested. In that connection, CR No.135 of 2002 was registered. AKL Telgi was shown arrested in this case on 30/9/2002. This case ::: Downloaded on - 09/06/2013 16:08:51 ::: AJN 55 was taken over by SIT and thereafter by CBI on 20/4/2004 as per the direction of the Supreme Court and gradually the real extent and nature of the scam came to light. PI Darekar's statement was recorded on 12/11/2002 by SIT.
PI Darekar stated that pursuant to the information received by PI Andhale (A-55) on 20/5/2002 he led the police to a flat at Fort. He found that it was an office dealing in stamps. He found two persons present there.
He took those two persons along with stamps and stamp papers to the office of Crime Branch, Dharavi Unit. He directed the staff members to come to the same office.
Accordingly, the members of the staff came to the said office. A-55 API Andhale interrogated those two persons and staff members and told him that the business carried out in the premises was lawful. He allowed them to go.
SIT recorded the statement of staff members and PI Gosalkar. All of them confirmed the above facts. Same pattern was followed in respect of the Andheri flat. SIT recorded several other statements which corroborated the above story. AKL Telgi was shown arrested in CR No.78 of ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 56 1998 as late as on 11/11/2002.
23. It is pertinent to note that even prior to 7/6/2002, when Bund Garden Police Station effected seizure of counterfeit stamps at Pune, there were several other cases registered at different police stations of Mumbai in connection with counterfeit stamps and stamp papers in which AKL Telgi was involved. Though AKL Telgi was in jail in Karnataka, he monitored the unlawful activities of his Organized Crime Syndicate from there. One such case is Christopher murder case. One Christopher, driver of AKL Telgi was murdered and C.R. No. 123 of 2001 was registered at Shahu Nagar Police Station. By 15/2/2002, this case was fully detected and involvement of AKL Telgi came to light. At this stage, it is important to note that order dated 6/7/2002 was issued by A-65 stating that under instructions from A-59 Wagal - Joint Commissioner of Police, he has transferred this case to Crime Branch.
Prima facie, this transfer does not appear to be innocuous.
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24. Thereafter, AKL Telgi was shown arrested in Christopher murder case in CR No. 123 of 2001 on 28/10/2002. He was in the custody of Crime Branch till 11/11/2002. As already stated by me, in CR No.78 of 1998 he was shown arrested as late as on 11/11/2002. He continued to be in the custody of Crime Branch in that case from 11/11/2002 to 25/11/2002. Surprisingly, on 22/11/2002, A-59 Wagal, Joint Commissioner of Police issued order transferring seven cases registered at different police stations pertaining to counterfeit stamps and stamp papers in which AKL Telgi was involved to Crime Branch. On this order, there is an endorsement and signature of A-65. These cases are MRA Marg Police Station C.R. No.355 of 1995, General Branch CID CR No.41 of 1995, Colaba Police Station CR No.302 of 1995, Cuffe Parade Police Station CR No.382 of 1995, DCB CID, Unit-V CR No.78 of 1998, Dadar Police Station C.R. No. 287 of 2002 and MRA Marg Police Station CR No.79 of 2002.
Prima facie, this transfer order is also not innocuous. It is true that important cases can be taken over by the Crime ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 58 Branch. But, these cases appear to have been transferred to protect AKL Telgi as would be evident from certain facts which I shall now state.
25. As already noted by me, in CR No.123 of 2001, AKL Telgi was shown arrested on 28/10/2002 and was in police custody from 28/10/2002 to 11/11/2002. On 11/11/2002, he was shown arrested in CR No.78 of 1998 and was in custody of Crime Branch, Dharavi Unit V in that connection upto 25/11/2002. He was taken in custody in connection with CR No.382 of 1995 by Cuffe Parade Police Station on 25/11/2002. He continued to be in police custody from 25/11/2002 to 9/12/2002 in that connection.
On 9/12/2002, his custody was sought in CR No.302 of 95 registered at Colaba Police Station. He continued to be in police custody in that case from 9/12/2002 till 22/12/2002.
On 22/12/2002 he was taken in police custody in connection with CR No.387 of 2002 registered at Dadar Police Station. He was in police custody in that case from 22/12/2002 to 5/1/2003. On 5/1/2003, he was taken in ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 59 police custody in connection with CR No.155 of 2002 of MRA Marg Police Station. He continued to be in police custody in that case from 5/1/2003 to 17/1/2003. He was then taken in police custody in connection with CR No.41 of 1995 registered at the GBCB, CID on 17/1/2003. His police custody was granted upto 24/1/2003.
26. It is pertinent to note that though his police custody was granted till 24/1/2003, his custody was surrendered on 21/1/2003 and he was sent back to Karnataka where he was involved in a case registered at Madiwala Police Station. It is important to note that in Remand Application dated 20/1/2003, it was categorically stated that AKL Telgi may be remanded to judicial custody to facilitate the police to hold identification parade. However, in Remand Application dated 21/1/2003 it was stated that his police custody is not required for further investigation and he may be remanded to judicial custody. It was prayed that permission be granted to send him to Bangalore Jail. This conduct of the Crime Branch which had taken over ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 60 investigation was surprising because AKL Telgi, who was facing prosecution in Karnataka was brought to Mumbai by lifting ban imposed on him under Section 268 of the Criminal Procedure Code by the Karnataka Government.
It is also pertinent to note that in all these old cases, no steps were taken till Bund Garden Police Station registered CR No.135 of 2002. It is argued that till then, AKL Telgi was not known and, hence, attention of the Crime Branch was not focussed on these cases. Prima facie, this is hard to digest. AKL Telgi's involvement was known to Crime Branch since the time CR No.78 of 1998 was registered. A-44 Kamat was the investigating officer of the said case and A-55 was associated with it and knew its gravity. A-65 cannot feign ignorance of this case because as a superior officer, he was in touch with these officers. Prima facie, it appears that wheels of Crime Branch started moving after CR No.135 of 2002 was registered and when it was realized that acts of commission and omission of Crime Branch officers will come to light, pending cases appear to have been ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 61 transferred to Crime Branch to help AKL Telgi by keeping him in the protective custody of Crime Branch and also to cover acts of commission and omission of Crime Branch Officers.
27. It is now necessary to refer to CR No.73 of 2002 registered at Kurla Police Station on 17/7/2002. This case was also taken over by the Crime Branch. Accused Nandesh and Santosh were arrested near Kurla Railway Station with counterfeit stamp papers worth Rs.20 lakhs.
The statements of the accused clearly revealed that they had no connection with AKL Telgi's gang. API Kamat, A-44 visited Hyderabad on 21/7/2002 and 28/7/2002. It is the case of the prosecution that he was permitted to visit Hyderabad by A-65. On 29/7/2002 at Hyderabad seizure of counterfeit stamps and stamp papers was effected at the instance of Sayeed Hamid. Information as regards this was shown to have been given by Nandesh and Santosh, who were arrested in CR No.73 of 2002. Sayeed Hamid was brought to Bombay by API Kamat. Knowing ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 62 well that CR No.73 of 2002 registered at Kurla Police Station had nothing to do with AKL Telgi, this seizure was shown as a part of CR No.73 of 2002. No separate case was registered.
28. On 11-12/1/2003, a huge seizure of counterfeit stamp and stamp papers was effected at Vanmala compound Godown at Bhiwandi. It was shown as a seizure at the instance of one Shabbir Ahmed. This seizure was actually at the instance of AKL Telgi, however, it was shown at the instance of Shabbir Ahmed. This was done to protect AKL Telgi because in CR No.135 of 2002 registered at Bund Garden Police Station where Shabbir Ahmed is A-25, he had given confession inculpating AKL Telgi. The evidence collected by the prosecution shows that Hyderabad seizure and Bhiwandi seizure are in fact at the instance of AKL Telgi. But Hyderabad seizure is a separate case altogether and as it pertains to Hyderabad, the said case has been sent back to Hyderabad. It could never have been shown as part of CR No.73 of 2002.
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29. Bhiwandi seizure also has in fact no connection with CR No.73 of 2002 but is now a part of CR No.135 of 2002 registered by Bund Garden Police Station, Pune where Shabbir Ahmed is A-25. It is pertinent to note that though A-50, Senior PI Dal's case diary dated 15/1/2003 and 18/1/2003 show AKL Telgi as an accused in CR No.73 of 2002, decision to arrest him was postponed. In the first charge-sheet his name was not shown as an accused. If it was the case of the Crime Branch that AKL Telgi was involved in CR No.73 of 2002, decision to postpone his arrest could not have been taken. Subsequently, he was shown as an accused. However, obviously because Hyderabad seizure and Bhiwandi seizure had no connection with the seizure in CR No.73 of 2002 AKL Telgi was discharged in that case. Hyderabad and Bhiwandi seizures were, therefore, made a part of CR No.73 of 2002 to protect and benefit AKL Telgi and to weaken CR No.135 of 2002 of Bund Garden Police Station, Pune and also to cover acts of omission and commission of certain officers ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 64 of Crime Branch, particularly A-44 by glorifying them.
30. It is difficult to agree with the counsel for A-65 that A-65 did not know anything about this. On 4/9/2002, A-65 issued a Press Note under his signature stating that on 13/7/2002 officers and staff of Unit VI, Crime Branch laid a trap and nabbed Nandesh and Santosh and seized counterfeit stamps worth Rs.20 lakhs from them and in respect of this seizure CR No.73 of 2002 was registered. The Press Note further stated that during the course of investigation, one Sayeed Hamid was arrested and counterfeit stamp papers and stamps worth Rs.3,67,78,567/- were seized from his Hyderabad residence. A-65 claimed in the Press Note that the entire operation was carried out amongst others by A-50 Senior PI Dal, A-44 API Kamat under the direct supervision of ACP, D (North) Mr. Padwal, he himself and A-59 Joint Commissioner of Police (Crime) Mr. Wagal. Thus, he admitted that he was supervising the entire operation.
Prima facie, A-65 was in the know of things. It is urged by ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 65 counsel for A-65 that only a xerox copy of this Press Note is filed. This Press Note is, therefore, not admissible. At this stage, I do not want to go into the question of admissibility of documents. It is for the prosecution to bring it on record and it is for the trial court to decide whether it is admissible or not. At this stage, in my prima facie opinion, it is an important piece of material from the point of view of the prosecution.
31. It is pertinent to note that in respect of the scam involving fake stamps and stamp papers a Criminal Writ Petition No. 865 of 2003 was filed by Social Work Anna Hazare. In that writ petition on 4/9/03 the First Court passed an order issuing directions to the investigating agency. The Karnataka police had in their possession transcript of tape-recorded conversation between A.K.L. Telgi and A-49 advocate A.R. Kulkarni, A-44 API Kamat and one Anil Gote. A direction was given that the transcript of the said conversation be supplied to the Superintendent of Police, Investigating Officer, SIT Mumbai by the ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 66 Additional Director General of Police Stampit, Bangalore.
Accordingly the transcript was supplied. My attention is drawn to the said transcript. I find that at several places there is a reference to A-65. Prima facie, the manner in which A-65's name figures in this conversation gives rise to a grave suspicion that some unholy connection exists between the Organized Crime Syndicate of AKL Telgi and A-65. A-55's name also figures therein.
It is argued that AKL Telgi and his advocate A.R. Kulkarni (A-49) may be merely throwing names. It was pointed out that even certain political personalities are referred to in the conversation. Along with A-65, who esle's name figures in the conversation is not important at this stage.
If a repeated reference is made to senior officers of Crime Branch, it is a cause for concern. It is necessary to lead evidence and find out whether the names were merely thrown around or there is really any nexus. When members of Organized Crime Syndicate show such closeness or proximity to police officers that needs to be gone into considering the other peculiar facts of this case.
::: Downloaded on - 09/06/2013 16:08:52 :::AJN 67 Again it was argued that this transcript is not admissible, because, voice recognition has not been done. At the cost of repetition, I must state that prosecution will make an effort to bring this transcript on record. The trial court will decide the question of admissibility. At this stage, prima facie, it is a pointer to A-65's involvement.
32. It is now necessary to go to yet another important aspect. It appears that on 9/1/2003, Mr. R. Srikumar, I.P.S., Additional D.G. Karnataka in-charge of SIT Stamp scam, Karnataka was on a visit to Mumbai to discuss Bund Garden Police Station CR No.135 of 2002 with Mumbai Police. He along with DIG Mr. Jaiswal, who was in charge of SIT visited several places in Mumbai where raids were conducted. On 9/1/2003, he visited 7, Cuffe Parade flat of AKL Telgi. He was astonished to find arrested accused AKL Telgi who was in police custody sitting comfortably enjoying his tea and biscuits. He found all signs of regular inhabitation in the flat. One constable was found sleeping. Other constables were in plain clothes. AKL ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 68 Telgi was comfortably allowed to lead his normal life while in police custody. Belongings of the accused were neatly laid out in the Almirah and the bed showed signs of regular usage. Mobile phone was used by PC Pise to contact A-50 Senior PI Dal. An impression was sought to be created that they were waiting to arrest accused Tabrez Telgi. According to DIG Jaiswal, there was no doubt that AKL Telgi was consciously taken to the flat to enjoy the luxurious normal living while in police custody with full connivance of the police personnel and the reasons given by the occupants that they were waiting for a trap, did not hold water. In his report dated 10/1/2003, addressed to Mr. Basak, Additional Chief Secretary (Home), Government of Maharashtra, copy of which was addressed to the Directory General of Police, Maharashtra State, Mumbai and the Commissioner of Police, Mumbai, running into several pages, Mr. Jaiswal has stated what he had seen in the said flat and has strongly recommended action against the guilty officers including A-44 PI Kamat.
This report is a sad reflection on the credibility of Crime ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 69 Branch. According to Mr. Jaiswal, he had on 3/1/2003 warned A-65 telephonically that AKL Telgi was given all creature comforts while in police custody by the Crime Branch Officers and A-65 had assured that he would check out the facts and take counter measures to prevent such acts of commission and omission by the Crime Branch personnel. DIG Jaiswal stated in his report that obviously this had not happened.
33. On this report, there is an endorsement made by the Commissioner of Police that A-44 Kamat be suspended however he was not suspended. It is pertinent to note that in his letter dated 24/3/2003 addressed to DCP (Operations), A-65 has admitted that he had received such a call on 3/1/2003 from DIG Jaiswal. It is difficult to appreciate the contention of learned counsel for A-65 that A-65 was powerless. He could have initiated action to suspend A-44 as directed or could have at least withdrawn investigation from him. He did neither.
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34. This letter dated 24/3/2003 is relied upon to show that A-65 had taken action on coming to know from DIG Jaiswal about the acts of omission and commission by Crime Branch personnel. In this letter, it is stated that after receiving call from DIG Jaiswal on 3/1/2003, A-65 had warned the concerned officers and asked them to refrain from indulging in such activities and at that time A-50 PI Dal had told him that they were trying to tactfully recover from AKL Telgi a huge stock of fake stamps. Prima facie this appears to be toeing the line of the Crime Branch personnel who were caught unawares in 7, Cuffe Parade flat, that they were in the process of laying a trap, which stand, prima facie, appears to be totally an eyewash.
Prima facie there is substance in the contention of the prosecution that a strong and affirmative reaction was expected from A-65 and his not so reacting creates grave suspicion about his claim that he has no connection with the Organized Crime Syndicate of AKL Telgi.
35. DIG Jaiswal's report prima facie lends support to the ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 71 case of prosecution that AKL Telgi was kept out of lock-up during his custodial period. He was kept in the office of Crime Branch Unit V, Dharavi and not the usual lock-up and was allowed to move freely and visit his flat. It is submitted that AKL Telgi was kept in the office of Crime Branch Unit V as directed by the Commissioner of Police, Mumbai and in any case, the lock-up is at a short distance from Dharavi Unit of Crime Branch. In my opinion, these are matters of evidence. Prima facie, DIG Jaiswal's report dated 10/1/2003 and letter dated 24/3/2003 sent by A-65 to DCP (Operations) underplaying the observations of DIG Jaiswal and stating that there was an effort to tactfully unearth a huge stock of counterfeit stamps are enough to create grave suspicion indicating A-65's involvement.
36. I have already referred to the seizure of a large quantity of counterfeit stamps and stamp papers from two offices of AKL Telgi effected on 20/5/2002. The raids were conducted by A-55 PI Adhale and PI Darekar. Both the officers brought the persons in charge, present there ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 72 along with stock of counterfeit stamps and stamp papers to the Crime Branch office at Sahar. Members of staff were also called there. Material collected by the prosecution indicates that A-55 interrogated A-34 Zameer Sanadi and A-6 Firoz Shaikh and staff of the two offices and allowed them to go. He informed the other officers that the business conducted in the office was legal.
Consideration for this was paid by A-8 Sajju to A-55 PI Andhale. No offence was registered.
37. An anonymous complaint was received by the office of the Commissioner of Police, Mumbai making serious complaint against A-55 PI Andhale and his team of officers and A-59 Joint Commissioner of Police Wagal. Names of staff members of AKL Telgi's office who were called to the Sahar office were stated. It was stated that after taking a huge amount, all the persons who were called there were allowed to go by A-55 and matter was hushed up. On receipt of this complaint dated 31/3/2003, on 7/4/2003 A-65 was directed to conduct inquiry and submit report by ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 73 15/4/2003. A-65 recorded statements of the staff members. I have perused these statements. Prima facie, I find substance in the contention that A-65 recorded stereotype statements and submitted report dated 26/4/2003 that raids were effected to nab passport agents from Gujarat who were indulging in preparation of forged documents. Information was received that they were staying in guest houses and, therefore, these places were raided to locate them. However, these places turned out to be offices. Therefore, nothing was seized from the said places and nobody was arrested from there. In the report, A-65 commended A-55 PI Andhale for his alleged effective running of the unit and stated that allegations made against PI Andhale are false and baseless. It is pertinent to note that in the report, A-65 stated that he made enquiries with A-55, PI Darekar, API Patil and PI Ghosalkar and also with the staff members, who were present at those places.
38. Subsequently, statements of the staff members and ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 74 the officers came to be recorded by SIT in which they have come out with the real story that the two offices were dealing in stamps. Staff members stated how the raids were conducted, how they were called to Sahar Office, how their names were noted, how A-55 interviewed the two accused and them and how they were allowed to go. They stated that they learnt that A-8 Sajju had paid money to A-55 and, hence, they were released. The officers confirmed this story.
39. It is prima facie clear that A-65 conducted a perfunctory inquiry. A senior officer of A-65's standing was expected to probe into the matter further. Had he done so, he would have unearthed the crime. Instead, he chose to carry out a technical inquiry and gave a clean chit to A-55. It is submitted that A-55's report was accepted by senior officers. I am not inclined to go into that aspect. As I have already noted, it is not for me to say who are the other officers involved in this case. Prima facie, A-65's report dated 26/4/2003 is an additional piece ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 75 of evidence which indicates his involvement.
40. It was submitted that DIG Jaiswal who visited AKL Telgi's flat could have seized the mobile phones which were being used by the inmates of the flat, he could have taken action against the persons who were present there.
He could have arrested Janvekar brothers who were later on arrested in Delhi. He took no action. He is, therefore, guilty of acts of omission. It is submitted that if DIG Jaiswal is held not guilty of acts of omission, A-65 also cannot be held guilty for the same. In my opinion, DIG Jaiswal's role will also be scrutinized by the trial court, if such contention is raised by the defence. It is not necessary for me to comment on it at this stage. Though prima facie, I feel that DIG Jaiswal's report is a very important piece of evidence which supports the prosecution, A-65's case is examined by me against the backdrop of other circumstances also which I have noted hereinabove and not merely on the basis of the said report.
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41. It is argued that though DIG Jaiswal has stated in his report that large number of counterfeit stamps lying in a compound are yet to be detected, no effort was made by SIT to recover the said stock. It is argued that DCP Koregaonkar's statement indicates that Shabbir Shaikh revealed information about one more godown in Dal Mill compound at Bhiwandi. One Maqsood has stated that the key of the said godown was with Khalid. It is submitted that Khalid and Asif were in SIT custody. Yet, that compound was not detected. SIT's performance as investigating agency is not the subject matter of this appeal and hence I need not go into it. The trial court may go into it if necessary.
42. So far as Bhiwandi seizure is concerned, it is argued that A-65 was not present in Bhiwandi during the seizure, he was not party to fabrication of the panchnama and he was not present when A-59 Wagal and A-50 Dal took decision to fabricate it. Statement of A-65's driver is ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 77 relied upon in this connection. At this stage, such meticulous appreciation of evidence cannot be done.
Basic infirmities and broad probabilities can be considered. Material collected by the prosecution can be sifted to find out whether there is prima facie case against the accused or not. But, the material cannot be appreciated as if this court is conducting a trial. A roving inquiry is not permissible. Such appreciation of evidence must be best left to the trial court. Similarly, whether Section 10 of the Indian Evidence Act can be invoked in this case, whether the transcript of the conversation between AKL Telgi, A-44 Kamat and A-29 Kulkarni is hit by Section 6 of the Indian Evidence Act, the effect of non-
availability of the report of ISP Nasik at that stage will be decided by the trial court and not by this court at this stage.
43. It is submitted that the prosecution has suppressed the report of the inquiry conducted by the Government of Maharashtra pursuant to the Jaiswal report. Assuming the ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 78 report helps A-65, consequences of it's alleged suppression will have to be faced by the prosecution at the trial. The defence can always raise this issue if it is so advised. Besides, whether the report of a departmental inquiry has any bearing on criminal prosecution will again be a debatable issue which is best left untouched at this stage.
44. This case has national ramifications. Several accused including the main accused have pleaded guilty and they have been convicted. There is a possibility that this scam had the blessings and assistance of some high ranking police officers. Their involvement needs to be gone into and probed. In the ultimate analysis, I am of the opinion that the material collected by the prosecution, prima facie, indicates that A-65 has knowingly facilitated the commission of an organized crime or has facilitated acts preparatory to the organized crime by his acts of commission and omission. It gives rise to a strong and grave suspicion leading the court to presume that A-65 ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 79 has committed the offence. The Special Judge has misdirected herself in discharging him. She has failed to take into account several vital pieces of evidence collected by the prosecution, which prima facie indicate A-65's involvement. The order passed by the Special Judge discharging A-65 is therefore liable to be set aside.
45. In Tanviben Devitia v. State of Gujarat (1997) 7 SCC 156 and Sajjan Singh & Ors. v. State of Madya Pradesh, (1999) 1 SCC 315, the Supreme Court has held that in case of difference of opinion between two judges, the third judge is free to decide the appeal by resolving the difference in the manner he thinks proper and that the third judge is required to examine the whole of the case independently and he is not bound by any such opinion of the Division Bench. In this case, since both the learned Judges have differed on practically every aspect - factual as well as legal, and points of difference have not been framed, learned counsel have, in the light of the Supreme Court's judgments in Tanviben Devitia ::: Downloaded on - 09/06/2013 16:08:52 ::: AJN 80 and Sajjan Singh, requested me to decide the matter afresh. I have, therefore, not referred to the reasoning appearing in the differing judgments.
46. In the view that I have taken, I pass the following order :
47. The impugned judgment and order dated 26/6/2007 passed in MCOCA Special Case No.2 of 2003 is set aside.
The Special Judge is directed to frame the charge and proceed against A-65 Pradeep Bhalchandra Savant. It is clarified that all observations made by me touching the merits of the case are prima facie observations. The Special Judge shall decide the case independently and uninfluenced by the said observations.
48. The appeal is disposed of in the aforesaid terms.
[SMT. RANJANA DESAI, J.] ::: Downloaded on - 09/06/2013 16:08:52 :::