Bombay High Court
Mohd. Abid Ansari S/O Mohd. Akram Ansari vs State Of Mah. Thr. Pso Ps Jaripatka ... on 12 August, 2024
2024:BHC-NAG:9081
(1) 41.ba.594.2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (BA) NO. 594 OF 2024
Mohd. Abid Ansari s/o Mohd. Akram Ansari
Vs.
State of Maharashtra, Through Jaripatka Police Station, Nagpur
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. R. K. Tiwari, Advocate for applicant.
Mr. U. R. Phasate, APP for non-applicant/State.
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 12/08/2024
1. By this application, the applicant seeks
regular bail in connection with crime No.806/2023
registered with Jaripatka Police Station, Nagpur for
the offences punishable under Sections 364, 397,
294 of the Indian Penal Code and under Section 3/25
of the Arms Act and under Sections 3(1)(ii), 3(2),
3(4) of the Maharashtra Control of Organized Crime
Act, 1999 (hereinafter referred as MCOC Act').
2. The crime is registered on the basis of
report lodged by Kamal Anil Naik. As per the
allegation on 16.10.2023 at about 12.10 a.m. when
he along with his friends Atul Atram and Muzaffar
Sheikh visited the house of Samrat Gondane on
occasion of his daughter's birthday. When they were
standing in front of Ramesh Muttan shop, a white
colour car came driving in a rash and negligent
manner by co-accused Sumit Thakur and stopped
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near to the informant. The informant shouted upon
the driver of the said car. The driver stopped the said
car at some distance, thereafter the informant along
with his two friends went near the car and questioned
him about the manner in which he has driven the
said car, on that count, the driver replied that his
name is Sumit Thakur and whether he has not
identified him and also threatened him that he will
see him after dropping the girl who was along with
him. On that count, there was altercation between
them, thereafter the co-accused left the spot. He
again came back at about 12.50 a.m. along with the
other three persons. The said persons threatened
the informant and his friends of dire consequence by
pointing out Mauser. Thereafter, the co-accused took
the informant and his friends forcefully in the car
snatched the amount and their mobiles thereafter
they were assaulted. On the basis of the said report,
police have registered the crime against the present
applicant as well as the other co-accused.
3. Learned Counsel for the applicant
submitted that there is no material collected during
the investigation to show that the applicant is the
member of organized crime syndicate and in
furtherance of common object of the said organized
crime syndicate, he committed the offence. In fact,
the applicant was not having knowledge about the
intention of the co-accused. He is Mechanic by
profession and used to repair the car of the
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co-accused. On the day of incident, when he was
proceeding along with his uncle the co-accused
approached to him and asked him to sit along with
him under the impression that the test drive of the
car is to be taken therefore he sat in the car and
thereafter he took him at one godown, wherein the
informant was assaulted by the co-accused. Thus, it
is submitted that he has not even get down from the
car, whatever happened between the co-accused and
the informant, no single offence is registered against
him and there is absolutely no evidence to show that
he is either involved in any other crime along with
the other co-accused or he has committed any crime
in individual capacity. Thus, he submitted that except
the confession statement of the present applicant
under Section 18 of the MCOC Act, there is no other
material to connect the present applicant with the
alleged offence. Even the confessional statement is
in the nature of exculpatory statement. Thus,
considering there is no material against the present
applicant, therefore bar under Section 21(4) of the
MCOC Act would not attract, in view of that he be
released on bail.
4. Per contra, learned APP strongly opposed
the said application on the ground that the
association of the present applicant with the other
co-accused reveals from his statement under Section
18 of the MCOC Act. He further submitted that in
view of that bar under Section 21(4) of the MCOC Act
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the application of the present applicant deserves to
be rejected. He further submitted that the nature of
the offences and the crime chart shows the
involvement of the organized crime in various illegal
activities which are committed by the organized
crime syndicate for the pecuniary gain. In view of
that the application deserves to be rejected.
5. Having heard both sides and perused the
investigation papers from which it reveals that
allegation against the present applicant is that on the
day of incident, he was along with the other
co-accused and the co-accused assaulted the injured.
Admittedly, the name of the present applicant is not
mentioned in the FIR. The statements of the
witnesses namely Muzaffar Sheikh Abdul Sattar and
Atul Raju Atram also not named the present applicant
as an assailant. It reveals that the statement under
Section 18 of the MCOC Act i.e. confessional
statement of the present applicant also shows that he
sat in the car on the say of the co-accused and he is
working as Mechanic and used to repair the car of the
co-accused. On the day of incident also he has
received the phone call of the co-accused for
repairing of his car. On that day, he met the
co-accused and co-accused asked him to sit in the car
and therefore, he sat in the car and thereafter the
co-accused took him at the spot of incident wherein
the alleged incident has taken place. It further
reveals from the investigation papers that no single
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offence except the present crime is registered against
the present applicant.
6. To apply the provisions of the MCOC Act, it
is necessary to consider the expression "continuing
unlawful activity". In view of Section 2(1)(d) of the
MCOC Act, activities prohibited by law for the time
being in force punishable as described therein have
been undertaken either singly or jointly as a member
of organized crime syndicate and in respect of which
more than one chargesheets have been filed. The
Stress is on the unlawful activities committed by the
organized crime syndicate.
7. Section 2(1)(f) of the MCOC Act defines
"organized crime syndicate" means a group of two or
more persons who, acting singly or collectively, as a
syndicate or a gang indulged in activities of organized
crime.
8. Thus, the MCOC Act contemplates a
situation where a group of persons as members of
organized crime syndicate indulge in organized crime.
That they indulge in use of violence, threats of
violence, intimidation, etc. to gain pecuniary benefit
or undue economic or other advantage for
themselves or any other person. These activities as
per the definition of organized crime are continuing
unlawful activity prohibited by law. The definition of
continuing unlawful activity is defined in Section 2(1)
(6) 41.ba.594.2024
(d) which means that an activity prohibited by law for
the time being in force, which is a cognizable offence
punishable with imprisonment of three years or
more, undertaken either singly or jointly, as a
member of an organized crime syndicate or on behalf
of such syndicate in respect of which more than one
chargesheets have been filed before a competent
court within the preceding period of ten years and
that court has taken cognizance of such offence.
9. Thus, for an activity to be a `continuing
unlawful activity', a) the activity must be prohibited
by law; b) it must be a cognizable offence punishable
with imprisonment of three years or more; c) it must
be undertaken singly or jointly; d) it must be
undertaken as a member of an organized crime
syndicate or on behalf of such syndicate e) in respect
of which more than one charge-sheet have been filed
before a competent court.
10. Thus, Section 2(1)(d) of the MCOC Act
defines "continuing unlawful activity" set down a
period of ten years within which more than one
chargesheets have to be filed. The members of the
crime syndicate operate either singly or jointly in
commission of organized crime. They operate in
different modules. A person may be a part of the
module which jointly undertakes an organized crime
or he may either singly as a member of the organized
crime syndicate or on behalf of such syndicate
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undertake an organized crime. In both the situations,
the MCOC Act can be applied. It is the membership of
organized crime syndicate which makes a person
liable under the MCOC Act.
11. Learned Counsel for the applicant
submitted that there is no material to show that the
applicant is running or a member of an organized
crime syndicate. Even, the chart placed on record
along with the chargesheet nowhere shows that the
applicant committed the offence as member of
organized crime syndicate and none of offences are
registered against him to show that the applicant has
generated illegal wealth by committing the said
crime. Thus, the provisions of the MCOC Act are not
applicable.
12. The Maharashtra Control of Organized
Crime Act 1999, as its long title indicates, is "an Act
to make special provisions for the prevention and
control of, and for coping with, criminal activity by
organized crime syndicate or gang and for matters
connected therewith or incidental thereto". The
statement of objects and reasons contains the
reasons which constituted the foundation for the
legislature to step in: Firstly, organized crime which is
in existence for some years poses a serious threat to
society; Secondly, organized crime is not confined by
national boundaries; Thirdly, organized crime is
fuelled by illegal wealth generated by contract killing,
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extortion, smuggling and contraband, illegal trade in
narcotics, kidnapping for ransom, collection of
protection money and money laundering, and other
activities; Fourthly, the illegal wealth and black
money generated by organized crime pose adverse
effects on the economy; Fifthly, organized crime
syndicates make common cause with terrorists
fostering narcoterrorism which extends beyond
national boundaries; Sixthly, the existing legal
framework in terms of penal and procedural laws and
the adjudicatory system were found inadequate to
curb and control organized crime; and Seventhly, the
special law was enacted with "stringent and deterrent
provisions" including in certain circumstances, the
power to intercept wire, electronic or oral
communication.
13. In the light of the above, if facts of the
present case are taken into consideration, admittedly,
no offence is registered against the applicant showing
that he has either generated illegal wealth by way of
committing such type of crimes or his association
with the other co-accused. There is no material to
show that the existing legal framework work and
procedural law are inadequate to deal with the
present applicant. Except present crime, there is no
other offence registered against the present applicant
showing he had committed the offence to gain illegal
wealth.
(9) 41.ba.594.2024
14. For enabling the court to exercise its
discretion in favour of a person the accused of having
committed an offence punishable under the MCOC
Act, what is required is existence of reasonable
grounds for believing that applicant before the court
is not guilty of an offence of organized crime. The
satisfaction that the accused is not guilty is to be on
the basis that there are reasonable grounds for
believing that the accused is not guilty. The phrase
"reasonable ground" is not similar to the sufficient
grounds.
15. Insofar as the provisions of Section 21(4)
of the MCOC Act are concerned, the Hon'ble Apex
Court in the case of Ranjitsing Brahmajeetsing
Sharma vs. State of Mah. and anr, reported in
2005 ALL MR (Cri) 1538 (SC) held that the
restriction imposed by Section 21 (4) of the MCOC
Act on the powers of the courts cannot be pushed too
far. It is not as if a person can be released on bail
only if there would be no ground for proceeding
against him at all on the charge of an offence
punishable under the MCOC Act. The provisions are
required to be interpreted in a reasonable manner.
They cannot be interpreted in such a manner so as to
make the grant of bail impossible. It is not the court
is required to come to positive finding that the
applicant for bail is not guilty of an organized crime
before grant of bail. A careful analysis of the relevant
provisions and the observations made by the Hon'ble
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Apex Court it reveals that the legal position in that
regard is that for enabling the court to exercise its
discretion in favour of person accused of having
committed an offence punishable under the MCOC
Act, what is required is existence of reasonable
grounds for believing that applicant before the court
is not guilty of an organized crime. The satisfaction
that the accused is not guilty is not contemplated by
the relevant provisions and what is required is that
the satisfaction that there are reasonable grounds for
believing the accused to be not guilty. The phrase
"reasonable grounds" should not be confused with
the phrase "sufficient grounds". It cannot be lost sight
of the fact that the special court would be entitled to
discharge an accused if it considers that there is no
sufficient ground for proceeding against the accused.
The tests, that are applied while considering bails,
are that whether positive finding can be recorded that
the accused is not guilty for such an offence. The
Hon'ble Apex Court has observed in the case cited
supra that it is not the court is required to come to
positive finding that the applicant for bail is not guilty
of an organized crime before grant of bail.
16. In the light of the above principles, if facts
in the present case are considered, admittedly, the
name of applicant is neither mentioned in the FIR nor
he is named by the other eyewitnesses. The
subsequent statements of the witnesses also
nowhere shows his involvement in the crime. There
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is no material to show that he had committed the
offence as a member of organized crime syndicate.
The confessional statement of the present applicant is
also exculpatory in nature. The chart shows that
none of the offence is registered against the present
applicant, except the present crime. The investigation
papers nowhere shows that he was either associated
with the members of the organized crime syndicate
or he has committed any offence to gain economic or
pecuniary benefits or other advantages for himself or
any other reasons.
17. Thus, there is reasonable grounds to hold
that applicability of the MCOC is doubtful. The nexus
between the present applicant and the offences which
alleged to be committed by the other members of the
organized crimes syndicate also not demonstrated
that the involvement of the present applicant is with
the other members of the organized crimes
syndicate.
18. For the reasons recorded above, the
application deserves to be allowed. In view of that, I
proceed to pass following order:
ORDER
(i) The Criminal Application is allowed.
(ii) Applicant Mohd. Abid Ansari s/o Mohd. Akram Ansari shall be released on bail, in connection with crime No.806/2023 registered with Jaripatka Police Station, Nagpur for the (12) 41.ba.594.2024 offences punishable under Sections 364, 397 and 294 of the Indian Penal Code and under Section 3/25 of the Arms Act and under Sections 3(1)(ii), 3(2), 3(4) of the Maharashtra Control of Organized Crime Act, 1999, on his executing a P.R. Bond in the sum of Rs.50,000/- with one solvent surety of the like amount.
(iii) The applicant shall attend the concerned Police Station twice a month on 1st and 15th of every month, till conclusion of the trial.
(iv) The applicant shall not leave the jurisdiction of the District Court Nagpur without prior permission of the said Court.
(v) The applicant shall not indulge himself in similar type of activities.
(vi) The contravention of any of the conditions imposed would lead to the cancellation of bail.
19. The application is disposed of.
(URMILA JOSHI-PHALKE, J.) Sarkate Signed by: Mr. A.R. Sarkate Designation: PA To Honourable Judge Date: 17/08/2024 11:11:45